|European Case Law Identifier:||ECLI:EP:BA:2011:T243409.20111122|
|Date of decision:||22 November 2011|
|Case number:||T 2434/09|
|IPC class:||G11B 7/24|
|Language of proceedings:||EN|
|Download and more information:||
|Title of application:||Optical disk and recording/reproducing apparatus|
|Applicant name:||Kabushiki Kaisha Toshiba|
|Relevant legal provisions:||
|Keywords:||Examination of the appeal - yes
Admission of submissions made for the first time during oral proceedings - (no)
Substantial procedural violation - (no)
Reimbursement of appeal fee - (no)
If a European patent application is finally deemed to be withdrawn after an admissible appeal against a decision refusing it has been filed, the appeal can usually be considered disposed of, because there is no possibility of a European patent being granted for the application. (See points 4 and 5).
However, where, as in the present case, the sole aim of the appeal is to obtain a finding by the board of appeal that a substantial procedural violation occurred in the first-instance proceedings, such that the appealed decision is to be set aside and the appeal fee reimbursed, the appeal cannot be dealt with in this way. In these circumstances the appellant has a legitimate interest in receiving a decision on the merits of the appeal. Therefore the appeal must be examined and the appeal proceedings cannot be closed without a substantive decision on the case. (See points 6 to 9).
Date retrieved: 30 December 2018