Friday, 21 July 2017

J 13/14 - On divisionals and translations...

Translating prohibited?

The present European patent application was filed in English as a divisional application from a parent application which was as an international application filed in German and also published in German. On entry of the parent application before the EPO, a translation into English was filed.

However, filing the divisional application in English turned out to be fatal mistake. 

According to Rule 36(2), a divisional application shall be filed in the language of the proceedings for the earlier application, while providing for an exception in case the latter was not filed in an official language of the European Patent Office, in which case the divisional application may be filed in the (non-official) language of the earlier application while having to provide a translation.

Filing the English translation did not change the language of proceedings of the parent application (which remained German). German is an official language of the EPO, so the exception of Rule 36(2) does not appear to apply. However, one cannot fault the appellant for exploring all legal remedies.

Catchwords: 

1. For the purposes of Article 76(1), first sentence, and Rule 36(2), first sentence, EPC, a European divisional application of an earlier European patent application which was filed in an EPO official language must also be filed in the EPO official language of the earlier application. Otherwise, it is filed in an inadmissible language. In this case a correction of the language deficiency by means of a translation into the language of the proceedings for the earlier application is neither required under Rule 36(2), second sentence, EPC nor is it even admissible in view of the wording of that provision and the Enlarged Board's decision G 4/08. Nor is it possible for the applicant to remedy the language deficiency in its divisional application by means of a correction under Rule 139, first sentence, EPC or by means of an amendment under Article 123(2) EPC.

2. In accordance with the established jurisprudence of the boards of appeal, a European divisional application which was filed in an inadmissible language cannot be treated as a valid divisional application by analogous application of Article 90(2) EPC.

Reasons for the Decision
Admissibility of the appeal

1. The appeal is admissible.

Allowability of the appeal

2. The first question in this appeal case is whether the present application fulfils the EPC language requirements for divisional applications.

3. Applicable EPC provisions

3.1 It is established jurisprudence of the boards of appeal that a divisional application is a new application which is separate from and independent of the earlier application. Therefore, divisional applications are to be treated in the same manner as ordinary applications and are subject to the same requirements, unless specific provisions of the EPC require something different (see G 1/05, OJ EPO 2008, 271, points 3.1, 8.1, 9.1 of the Reasons).

3.2 The present application was filed on 1 October 2010, i.e. after entry into force of the revised European Patent Convention (EPC) on 13 December 2007. Thus, on the latter date, the present application was not pending. Therefore the transitional provisions do not apply in accordance with Article 7(1), second sentence, of the Revision Act of 29 November 2000 and the decisions of the Administrative Council of 28 June 2001 (Special edition No. 1, OJ EPO 2007, 197) and 7 December 2006 (Special edition No. 1, OJ EPO 2007, 89). However, said transitional provisions do apply to the parent application, which was pending at the time the revised EPC entered into force.

3.3 Since the present application was filed as a divisional application on 1 October 2010, the applicable provisions are those of Rule 36(2) EPC, as amended by the Decision of the Administrative Council CA/D 2/09 of 25 March 2009 (OJ EPO 2009, 296), which entered into force on 1 April 2010 (cf. Article 1, point 1, and Article 2, points 1 and 2, of said decision). The respective version of this provision is of relevance because Rule 36(2) EPC as in force before 1 April 2010 allowed the filing of a divisional application only in the language of the proceedings for the earlier application, irrespective of whether the language of filing of the earlier application was an EPO official language or not.

4. Language of the proceedings

4.1 Present application

The present application was filed in English, which is one of the EPO official languages pursuant to Article 14(1) EPC. Article 14(3) EPC stipulates that the EPO official language in which the European patent application is filed must be used as the language of the proceedings in all proceedings before the EPO. Accordingly, the language of the proceedings in the present case is English. This means that, in written proceedings on the present application, EPO departments cannot use an EPO official language other than English (see also G 4/08, OJ EPO 2010, 572, Headnote, Question 2, and section 4 of the Reasons).

4.2 Parent application

The parent application was filed and published as an international patent application under the PCT in German, which is one of the EPO official languages pursuant to Article 14(1) EPC 1973. Therefore, a translation of the international application was not to be filed under Article 22(1) PCT and Article 158(2) in conjunction with Rule 107(1)(a) EPC 1973. Accordingly, German is the language of the proceedings for the parent application.

5. Language regime with respect to the filing of a divisional application

5.1 Article 76(1), first sentence, EPC provides that a European divisional application must be filed directly with the EPO "in accordance with the Implementing Regulations".

The language regime for divisional applications is laid down in the first and second sentences of Rule 36(2) EPC, which read:

"A divisional application shall be filed in the language of the proceedings for the earlier application. If the latter was not in an official language of the European Patent Office, the divisional application may be filed in the language of the earlier application; a translation into the language of the proceedings for the earlier application shall then be filed within two months of the filing of the divisional application."

5.2 The first sentence of Rule 36(2) EPC lays down the principle that a divisional application must be filed in the language of the proceedings for the earlier application. However, there is an exception to this strict legal obligation if the earlier application was not filed in an EPO official language. In this case, the second sentence of Rule 36(2) EPC foresees the additional possibility of filing a divisional application in the non-EPO language of the earlier application, provided a translation into the language of the proceedings for the earlier application (which is one of the EPO official languages) is then filed within two months of the filing of the divisional application.

5.3 The first and second sentences of Rule 36(2) EPC clearly deal with two different factual situations and their wording is unequivocal on the language in which a divisional application must be filed in each respective situation. This wording also shows that only the first sentence of Rule 36(2) EPC applies in the present case, where the parent application was filed in German, thus in an EPO official language. It follows clearly from the foregoing that the present application should have been filed in no other language than German in order to meet the requirements of Article 76(1), first sentence, and Rule 36(2), first sentence, EPC. Therefore, the present application was filed in an inadmissible language.

6. Allowability of filing a translation of the present application into the correct EPO official language

6.1 The appellant essentially argued that, even in a case where the earlier application was filed in an EPO official language, it was still possible under Rule 36(2) EPC to use a language other than this EPO official language for the divisional application and to file the translation into the EPO official language of the earlier application at a later point in time.

6.2 The board notes that, first of all, it follows from the above that the unambiguous wording of the second sentence of Rule 36(2) EPC excludes the appellant's interpretation that this provision also applies where the earlier application was filed in an EPO official language. The second sentence of Rule 36(2) EPC requires a translation only if a divisional application is filed in the original non-EPO language of the earlier application. However, that is not the case here.

6.3 The appellant's interpretation is furthermore not supported by the explanatory remarks to the amendment of Rule 36(2) EPC which entered into force in 2010

(CA/145/08, page 8). The relevant part concerning the language of divisional applications reads:

"The text of Rule 36(2) in force since December 2007 says that a divisional application must be written in the language of the proceedings for the earlier application in order to simplify and streamline the procedure. In practice, divisional applications have virtually always been filed in the language of the proceedings for the parent application, even though EPC 1973 allowed them to be filed in the original language of the parent application, for instance Spanish or Dutch.

However, the option of using any language for filing European patent applications could have increased demand for divisional applications in the original language of the parent application, given that Article 14(2), second sentence, EPC allows the translation of an application to be adapted to the original text at any stage of the grant procedure. But Rule 36(2) EPC as currently worded has eliminated the possibility of adapting the divisional application, which has to be filed in the language of the proceedings for the parent application, to the latter's original text, which of course forms the basis for the wording of the divisional application. Moreover in the case of divisional applications filed under Rule 40(2) and (3) EPC with a reference to the earlier European application in a non-EPO language, it is fundamentally unsatisfactory to have to refer not to the original text of the earlier application but to its translation into the language of the proceedings. It is therefore proposed that Rule 36(2) EPC be amended to enable divisional applications to be filed in the language of the proceedings or the original language of the parent application."

The text does not explicitly say that the "original language of the parent application" must have been a non-EPO language. However, Spanish and Dutch, the two languages given as examples of the "original language of the parent application", are not EPO official languages. Moreover, the text refers to Article 14(2), second sentence, EPC, which "allows the translation of an application to be adapted to the original text at any stage of the grant procedure".

However, the second sentence of Article 14(2) EPC has to be read together with its first sentence. Article 14(2), first sentence, EPC, stipulates that "[a] European patent application shall be filed in one of the EPO official languages, or, if filed in any other language, translated into one of the EPO official languages in accordance with the Implementing Regulations." Thus a translation only has to be filed if the "original language" of an application is not one of the EPO official languages. Finally, the text of the explanatory remarks clearly distinguishes between the language of the proceedings for the earlier application and its original language; see for example the very last sentence of the explanatory remarks. If, however, the earlier application is filed in one of the EPO official languages, then, pursuant to Article 14(3) EPC, this language must be used as the language of the proceedings in all proceedings before the EPO. That means that, in such cases, there is no difference between the language in which the earlier application was filed and the language of the proceedings for it. The only case in which the (non-EPO) language in which the earlier application was filed differs from the language of the proceedings for it under Article 14(3) EPC is where the application has to be translated into one of the EPO official languages in accordance with Article 14(2) EPC.

6.4 In the light of the foregoing, the board cannot share the appellant's view that Rule 36(2) EPC provides for the alternative option to file a divisional application in an EPO official language other than the EPO official language in which the earlier application was filed (i.e. the language of the proceedings for the earlier application) and then to file a translation into the language of the proceedings for the earlier application at a later time.

6.5 The appellant's interpretation of Rule 36(2) EPC would also go against the ruling of the Enlarged Board of Appeal on the language of the proceedings.

In its decision G 4/08, the Enlarged Board ruled that if an international application has been filed and published under the PCT in an official language of the EPO, it is not possible, on entry into the European phase, to file a translation of the application into one of the other two EPO official languages, and it clarified that EPO departments cannot use, in written proceedings on a European patent application or an international application in the regional phase, an EPO official language other than the language of the proceedings used for the application under Article 14(3) EPC (G 4/08, Headnote, Questions 1 and 2, points 2 to 4 of the Reasons).

It is true that, in decision G 4/08, the primary question was whether, for an international application which was filed and published in an EPO official language, the applicant can, on entry into the European phase, choose another EPO official language by filing a translation of the international application in a different official language (see point 2, in particular, point 2.2 of the Reasons). However, the Enlarged Board noted that the basis for answering this question was Article 14(3) EPC 1973 and that this provision assumed "a language of filing that has already been defined and will be the language of the subsequent proceedings" (points 2.1 and 2.2 of the Reasons). In point 2.4 of the Reasons, the Enlarged Board referred to the principle of equivalence between European applications and international ones for which the EPO acts as designated or elected Office, which was expressly laid down in Article 150(3) EPC 1973 and implemented in particular by Article 158 EPC 1973, and held: "Under Article 150(3) EPC 1973, an international application for which the EPO acts as designated or elected Office is deemed to be a European application. Allowing a change of language when a Euro-PCT application published in an EPO official language enters the regional phase would mean supposedly identical applications being treated differently depending on whether they are international or direct European filings." The Enlarged Board also analysed the provisions of "EPC 2000" (G 4/08, point 3 of the Reasons) and concluded in point 3.11 of the Reasons that the EPC 2000 could not be interpreted "as allowing, on entry into the European phase, a Euro-PCT application published in an EPO official language to be replaced by its translation into another such language".

For the sake of completeness, it should also be mentioned that the Enlarged Board referred to some decisions by EPO boards of appeal which had allowed the language of the proceedings to be changed. However, the Enlarged Board held that the abolition of Rule 3(1) EPC 1973, which entered into force on 1 June 1991, removed all legal basis for the previous practice and that the texts in force left no room for a free interpretation which would be tantamount to restoring Rule 3 EPC 1973 (G 4/08, point 4 of the Reasons, in particular, points 4.5 and 4.10).

Finally, the board refers to G 4/08, point 2.4 of the Reasons, where it is held: "Language is not a mere procedural matter, after all; it goes to the heart of the patent's substance. Translations are - legitimately - suspect; that justifies precautions, exemplified by the way in which the original application remains the point of reference in case of translation (Article 14(2) EPC) and by Rule 46.3 PCT governing the language of amendments." In the board's view, these considerations apply equally to the translation of an application filed as a divisional application. This is clearly reflected in the provisions of Rule 36(2) EPC. In case of a translation under Rule 36(2), second sentence, EPC the original parent and the original divisional application also remain the point of reference (see Article 70(2) EPC).

6.6 The board accordingly concludes from the above interpretation and explanation by the Enlarged Board of the relevant EPC provisions that, if a direct European patent application has been filed in an EPO official language, which is then the language of the proceedings, it is not possible to change this language in the subsequent proceedings by translating the application into another EPO official language. In the board's view, the same applies to a direct European patent application filed as a divisional application and, therefore, the appellant's interpretation of Rule 36(2), second sentence, EPC must fail.

6.7 The board now turns to the appellant's argument on Rule 4 EPC 1973. This provision likewise concerns the language of a European divisional application, but under the EPC 1973, and reads:

"European divisional applications or, in the case referred to in Article 14, paragraph 2, the translations thereof, must be filed in the language of the proceedings for the earlier European patent application."

The board takes the view that there is no difference in substance between the term "must" in Rule 4 EPC 1973 and the term "shall" in Rule 36(2) EPC. This also follows clearly from the other two language versions of the latter provision, where the terms "ist ... einzureichen" and "doit être déposée" are used. Moreover, in the revised EPC the term "must" in the provisions of EPC 1973 has been replaced by the term "shall" without any change in substance according to the respective travaux préparatoires (see for example Articles 76(1) and 83 EPC). It is also clear from the reference to Article 14(2) EPC 1973 in Rule 4 EPC 1973 that the translation of European divisional applications which were filed in an admissible non-EPO language in accordance with Article 14(2) EPC 1973 had to be filed in the language of the proceedings for the earlier European patent application. Quite apart from that, Rule 4 EPC 1973 is not applicable to the present case (see point 3.2 above).

6.8 Regarding the appellant's submissions on the correctness of the Guidelines A-IV, 1.3.3 and A-VIII, 1.3, the board first notes that it is not bound by the Guidelines. Apart from that, the appellant cited a version of the Guidelines which reflects the provisions of Rule 36(2) EPC as in force before 1 April 2010, which allowed the filing of a divisional application only in the language of the proceedings for the earlier application, irrespective of whether the language of filing of the earlier application was a non-EPO language.

The respective parts of the Guidelines for Examination in the European Patent Office (status April 2010) obviously took into account Rule 36(2) EPC as in force on 1 April 2010. They read:

"Language requirements

As indicated in VIII, 1.3, a divisional application must be filed in the language of the proceedings of the parent application. Alternatively, if the earlier (parent) application was filed in a language other than an official language of the European Patent Office, the divisional application may be filed in that language. In this case a translation into the language of the proceedings for the earlier application shall then be filed within two months of the filing of the divisional application (see III, 14)." (A-IV, 1.3.3), and

"Any European divisional application must be filed in the language of the proceedings of the earlier application from which it is divided. Alternatively, if the earlier (parent) application was not in an official language of the European Patent Office, the divisional application may be filed in the language of the earlier application. In this case a translation into the language of the proceedings for the earlier application shall then be filed within two months of the filing of the divisional application (see A-III, 14)." (A-VIII, 1.3)

6.9 It follows from the above that it is not correct to say that a translation of the present application into the language of the proceedings for the parent application is required under Rule 36(2), second sentence, EPC. Nor is such translation admissible in view of the wording of Rule 36(2) EPC and the Enlarged Board's decision G 4/08.

7. Remedy of the language deficiency by means of a correction or an amendment under the EPC

Since the present application was filed in English and thus not in an admissible language as explained above, it contains a deficiency with regard to the language. The appellant argued that this deficiency could be remedied by means of a correction or an amendment, and based its view on different lines of argument (see point XII, (b), (i)-(iii) above). However, the board does not share the appellant's view for the reasons set out below.

7.1 Correction in reply to an invitation from the EPO under Rule 58 EPC in conjunction with Rule 57(a) EPC

Article 90(4) EPC stipulates that, where the EPO in carrying out the examination under Article 90(1) or Article 90(3) EPC notes that there are deficiencies which may be corrected, it must give the applicant the opportunity to correct them. Hence, Article 90(4) EPC concerns correctable deficiencies which were noted during the examination under Article 90(1) or (3) EPC.

If the European patent application has been accorded a date of filing, the EPO must examine, in accordance with Article 90(3) EPC, whether a translation of the application required under Rule 36(2), second sentence, EPC has been filed in time (Rule 57(a) EPC). Where the EPO notes that this requirement of Rule 57(a) EPC has not been complied with, it informs the applicant accordingly and invites him to correct this deficiency within two months (Rule 58, first sentence, EPC).

In the board's view, a correction of the language deficiency in the present application under Rule 58 in conjunction with Rule 57(a) EPC is not possible since these provisions do not apply. The reason for this is that a correction of the language deficiency in the present application by a translation into the language of the proceedings for the parent application is neither required under Rule 36(2), second sentence, EPC nor admissible for the reasons explained under point 6 above. Thus the language deficiency in the present application cannot be corrected. Consequently, there is no legal basis in the EPC upon which the EPO could have invited the applicant to correct this deficiency.

7.2 Nor is a correction under Rule 139 EPC or an amendment under Article 123(2) EPC possible. In the board's view, the Enlarged Board's interpretation and explanation of the relevant EPC provisions in its decision G 4/08 apply mutatis mutandis where an applicant wishes to change the language of the proceedings by means of a correction under Rule 139, first sentence, EPC or by means of an amendment under Article 123(2) EPC. Therefore, the "Right to Amend" in decision G 1/05 does not exist with regard to the language of the proceedings.

Moreover, in the present case, the conditions would not be met for a correction of a "linguistic error" under Rule 139 EPC or for an amendment according to Article 123(2) EPC.

As to Rule 139 EPC, choosing the "wrong" language for a document to be filed with the EPO cannot be equated with a "linguistic error" for the purposes of Rule 139, first sentence, EPC (see also T 642/12, point 28 of the Reasons). The same must apply if the intended correction concerns the description, claims or drawings (Rule 139, second sentence, EPC).

According to Article 123(2) EPC, the European patent application may be amended. It may still be amended during examination proceedings so as to comply with the requirements of Article 76(1) EPC, provided, however, that the amendment complies with the other requirements of the EPC (see G 1/05, point 7 of the Reasons). Such a requirement is laid down in Rule 3(2) EPC, which stipulates that amendments to a European patent application have to be filed in the language of the proceedings. The board concludes from this that the language of the proceedings cannot be changed by means of an amendment under Article 123(2) EPC.

8. Legitimate expectations

The issue of legitimate expectations was addressed in the decision under appeal (see points 11 to 12 of the Reasons). The appellant has provided no arguments as to why this finding was wrong and even confirmed during the oral proceedings before the board that it was not relying on this procedural principle. Thus there is no reason for the board to deal with this issue in its decision.

9. Legal consequences of non-compliance with the language requirements

9.1 The board understands from the appellant's submissions that it objects to the finding in the decision under appeal that "[s]evere formal deficiencies in a divisional application may entail as consequence that the application is invalid, i.e. has no legal effect and accordingly it is not treated as valid divisional application by analogous application of Article 90(2) EPC (cf. G 1/05, op. cit., at 2.4; J 18/04, OJ EPO 2006, 560, at 39)." The appellant argued that no legal consequence was specified in Rule 36(2) EPC in the event that the divisional application was, for example, filed in an EPO official language other than the EPO official language in which the earlier application was filed. It also submitted that decision J 2/01 did not refer to language requirements. Rather, a correction of the deficiency in respect of the language requirements was possible according to decision G 1/05 (in particular, points 3.2 to 3.4 of the Reasons).

9.2 Under Article 90(1) EPC, the EPO is responsible for examining whether, on filing, a European patent application satisfies the requirements for the accordance of a date of filing. These requirements for a filing date are laid down in Article 80 EPC and the related provisions of the Implementing Regulations. However, since the present application was filed as a divisional application, it must first and foremost comply with the specific requirements of Article 76(1), first sentence, EPC and the related provisions of the Implementing Regulations, which contain conditions within the meaning of Article 4G(2), second sentence, Paris Convention. It is established EPO jurisprudence that if these specific requirements are not fulfilled, this situation is comparable to the case dealt with in Article 90(2) EPC, so that an analogous application of that provision is justified, with the legal consequence that the application at issue is not to be dealt with as a divisional application (see J 2/01 and J 18/04, point 39 of the Reasons, referring to J 11/91, point 4.2 of the Reasons; this last decision has been followed in later decisions such as J 26/10 and J 4/11).

9.3 As far as decision G 1/05 is concerned, it has to be noted that one of the questions the Enlarged Board ruled upon was whether it would indeed follow from accepting the "invalidity" of a divisional application containing added matter that such an application could not be made valid by a later amendment removing the added matter with retroactive effect (emphasis added). The passages cited by the appellant concern this issue and, indeed, it was decided that a divisional application which at its date of receipt contains subject-matter extending beyond the content of any earlier application as filed can be amended later in order that its subject-matter no longer so extends, even at a time when the earlier application is no longer pending.

However, the Enlarged Board acknowledged that severe formal deficiencies in an application as filed may thus, even if only in the extreme case and if so provided in the EPC, entail as a consequence that the application has no legal effect (G 1/05, points 2.3 and 2.4 of the Reasons). Moreover, as explained above, under the EPC provisions and in the light of decision G 4/08, amending the language of the proceedings for the present application is not possible.

9.4 The appellant further argued that EPO Form 1044, which was used for the EPO communication dated 28 January 2011 (see point IV above), contained a pre-printed exhaustive list of reasons for not processing an application as a divisional application and that, therefore, a further reason for such non-processing could not be added. The board notes that it is the EPC that provides the law governing the processing of European patent applications, and not any form that the EPO may have created, including EPO Form 1044. The contents of any such form must be properly based on the EPC. Apart from that, the board does not share the appellant's view that EPO Form 1044 entitled "Noting of loss of rights pursuant to Rule 112(1) EPC" contains an exhaustive list of reasons which justify not processing an application as a divisional. There is no indication of an exhaustive list in that form. Although one could argue that the sentence added to it does not refer to the relevant EPC provision, i.e. Rule 36(2) EPC, the information as such must have been clear and unambiguous for the applicant, as can be seen from its reply dated 7 April 2011. Moreover, there is nothing in the form issued to the applicant which might have justified a different interpretation of the text of the EPO form in accordance with the principle of the protection of legitimate expectations. Therefore, the present case differs from that underlying decision J 17/04, in which the pre-printed text in the EPO form at issue (EPO Form 1001) was ambiguous and could be misinterpreted.

9.5 For the above reasons and in accordance with the above-cited established jurisprudence, the present application cannot be treated as a valid divisional application by analogous application of Article 90(2) EPC because it does not fulfil the requirements of Article 76(1), first sentence, and Rule 36(2), first sentence, EPC.

10. Request for referral to the Enlarged Board of Appeal

10.1 The appellant requested that certain questions be referred to the Enlarged Board of Appeal (see point X above). The appellant based its request for a referral on the argument that an important point of law was concerned since the legal consequence of non-compliance of a divisional application with Rule 36(2) EPC was not regulated in the EPC, and that the matter touched on the possibility for the applicant to correct the language deficiency in its application, which was filed as a divisional application.

10.2 According to Article 112(1)(a) EPC, a board may, either of its own motion or following a request from a party, refer any question of law to the Enlarged Board of Appeal if it considers that a decision is required in order to ensure uniform application of the law, or if an important point of law arises.

10.3 An "important point of law" within the meaning of Article 112(1)(a) EPC 1973 arises if that point is of fundamental importance in that it is relevant to a substantial number of similar cases and is therefore of great interest not only to the parties to the appeal in hand but also to the public at large (see e.g. T 271/85, OJ EPO 1988, 341; G 1/12, OJ EPO 2014, A114, Reasons, point 11). However, even in such a situation, the board should make a referral only if it considers that a decision by the Enlarged Board is required. A question regarded as an important point of law does not need to be referred to the Enlarged Board of Appeal if the question can be answered beyond all doubt by the board itself (see for example J 5/81, OJ EPO 1982, 155; T 198/88, OJ EPO 1991, 254; J 22/95, OJ EPO 1998, 569).

10.4 The present board considers that cases in which the issue is a correction of an inadmissible language in which a divisional application has been filed will occur only extremely infrequently, so that the number of cases which might be negatively affected provides no reason for a referral. Moreover, the board dealt with the issues of whether Article 90(4) EPC or Rule 58 EPC in conjunction with Rule 57(a) EPC apply in the present case and whether a correction under Rule 139 EPC was possible (see section 7 above). The board was able to reach its conclusions on the basis of the wording of the provisions of the EPC and the existing EPO jurisprudence and to decide on these issues free from any doubt. Hence, no important point of law arises or needs to be clarified by the Enlarged Board of Appeal.

10.5 For the above reasons, the appellant's request for a referral to the Enlarged Board of Appeal must be refused.

11. Conclusion on the allowability of the appeal

In view of the above, the appellant's request that the case be remitted to the Receiving Section for treatment of the application as a divisional application is unallowable and, consequently, its appeal must be dismissed.

Request for reimbursement of the appeal fee

12. Pursuant to Rule 103(1)(a) EPC, a prerequisite for reimbursement of the appeal fee is that the appeal is deemed to be allowable. Since the appeal must be dismissed (see previous point 11), the appellant's request for reimbursement of the appeal fee is to be refused.

Order

For these reasons it is decided that:

1. The request for referral to the Enlarged Board of Appeal of the questions filed during the oral proceedings before the Legal Board is refused.

2. The appeal is dismissed.

3. The request for reimbursement of the appeal fee is refused.

This decision J 13/14 (pdf) has European Case Law Identifier: ECLI:EP:BA:2016:J001314.20161213Photo "Translation Prohibited" by Jacob Bøtter obtained via Flickr under CC BY 2.0 license (no changes made).

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