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Journal of Intellectual Property Law & Practice Advance Access published online on July 2, 2009
Journal of Intellectual Property Law & Practice, doi:10.1093/jiplp/jpp102
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© The Author (2009). Published by Oxford University Press. All rights reserved.

Current Intelligence

Is it possible to review a decision of the Examining Division to correct an ‘obvious mistake’?

David Rogers
Legal Member, Boards of Appeal
European Patent Office
Munich, Germany

Hydrostatic bearing with a roughened annular area on the inside of the bearing – inter partes Board 3.2.01, T-0079/07, European Patent Office, Board of Appeal, 24 June 2008

A European Patent Office Board of Appeal decided that neither the Boards of Appeal nor the Opposition Division were competent to review a decision of the Examining Division that an error in its decision is an obvious mistake and may be corrected under Rule 89 EPC 1973. This leads to the situation that if, after the Opposition Division has revoked a patent, a proprietor successfully requests the Examining Division to amend the claims under Rule 88 EPC 1973 and thus its grant decision under Rule 89 EPC 1973, and these amendments lead to the overcoming of the grounds for revocation upheld by the Opposition Division, this decision of the Examining Division can be reviewed neither before the Opposition Division nor the Board of Appeal.

Correspondence: Email: drogers{at}epo.org


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