Monday, 16 August 2010

T 1257/08 – No Self-Administered Justice

The opponent filed an appeal against a decision of the Opposition Division (OD) posted 7 May 2008 which on its cover sheet states that the opposition against European patent 982502 is rejected. He simultaneously paid the appeal fee and submitted the statement of the grounds of appeal. With letter dated 10 July 2008 the EPO issued a second decision, this time identified on the cover sheet as an interlocutory decision to maintain the above patent in amended form. The cover sheet is further headed, in handwriting, “correction” and states “please ignore our decision rejecting the opposition (A 101(2)) dated 7.5.08”. The annexed reasons for the decision are identical to those notified previously. The Appellant in response with letter received 18 August 2008 submitted a corrected notice of appeal against the second decision.

[1] The first written decision posted 7 May 2008 was duly notified in accordance with R 111 and R 113. Under the presumption of legal validity, it constitutes the OD’s only legally valid written decision, cf. T 830/03 [1.1-2]. The OD is bound by it and cannot itself set it aside. The subsequent second written decision posted 10 July 2008 with instruction to disregard the first therefore has no legal effect.

In so far as it is headed “correction” it attempts to correct an obvious inconsistency between the first written decision’s tenor as stated on its cover page and that expressed in the reasons and minutes accompanying it. At best therefore the notification of 10 July 2008 can be regarded as a correction (albeit in formally incorrect form) to the first decision of an obvious mistake, R 140, with retrospective effect, see T 116/90. As it is legally void as a decision, the second notice of appeal filed against it also has no effect.

The Board adds that a procedurally proper correction of the first decision is moot in view of the present decision. Only the first written decision as legally valid decision is appealable, and admissibility is decided in relation to that decision.

In the present case the first notice of appeal and the statement of grounds of appeal were filed and the appeal fee paid within the statutory time periods prescribed therefor by A 108 and R 126(2) and starting from the date of posting of the first written decision. As all other formal requirements are indisputably met, the Board concludes that the appeal is admissible.

If you wish to download the whole decision, please click here.