T 37/12 - Scribbling during Appeal
This is an appeal against the decision of the Opposition Division to maintain European Patent Nr. 1 687 159 in amended form. During Oral Proceedings before the Board of Appeal, the proprietor submitted a new auxiliary request 3 which contained handwritten amendments.
Opponent 2 argued that documents submitted during appeal proceedings which contained handwritten amendments did not satisfy the requirements of Rule 49(8) and 99 (3) EPC.
As a reminder, Rule 99(3) states that Part III of the Implementing Regulations shall apply mutatis mutandis to the notice of appeal, the statement of grounds and the documents filed in appeal proceedings, whereas Rule 49(8) states that the request for grant of a European patent, the description, the claims and the abstract shall be typed or printed.
Headnote [translated by yours truly]
1. When making use of the general reference in Rule 99(3) EPC [to part III of the Implementing Regulations], and when taking into account the Rule's legislative history and purpose, one needs to determine whether and how one of the Rules being referred to is be applied to a particular set of circumstances of an individual case.
2. Applying Rules 49(8) and 50(1) EPC to documents filed during Oral Proceedings before the Boards of Appeal would run counter to procedural economy and [the applying of the Rules] would also not be due for other reasons.
3. The introduction of Rule 99(3) EPC has therefore not given cause to change the practice, which has been practiced over years, according to which documents filed during Oral Proceedings before the Boards of Appeal may contain legible handwritten amendments.
Opponent 2 argued that documents submitted during appeal proceedings which contained handwritten amendments did not satisfy the requirements of Rule 49(8) and 99 (3) EPC.
As a reminder, Rule 99(3) states that Part III of the Implementing Regulations shall apply mutatis mutandis to the notice of appeal, the statement of grounds and the documents filed in appeal proceedings, whereas Rule 49(8) states that the request for grant of a European patent, the description, the claims and the abstract shall be typed or printed.
Headnote [translated by yours truly]
1. When making use of the general reference in Rule 99(3) EPC [to part III of the Implementing Regulations], and when taking into account the Rule's legislative history and purpose, one needs to determine whether and how one of the Rules being referred to is be applied to a particular set of circumstances of an individual case.
2. Applying Rules 49(8) and 50(1) EPC to documents filed during Oral Proceedings before the Boards of Appeal would run counter to procedural economy and [the applying of the Rules] would also not be due for other reasons.
3. The introduction of Rule 99(3) EPC has therefore not given cause to change the practice, which has been practiced over years, according to which documents filed during Oral Proceedings before the Boards of Appeal may contain legible handwritten amendments.