T 2434/09 () of 22.11.2011

European Case Law Identifier: ECLI:EP:BA:2011:T243409.20111122
Date of decision: 22 November 2011
Case number: T 2434/09
Application number: 02007071.0
IPC class: G11B 7/24
Language of proceedings: EN
Distribution: B
Download and more information:
Decision text in EN (PDF, 55.292K)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: Optical disk and recording/reproducing apparatus
Applicant name: Kabushiki Kaisha Toshiba
Opponent name: -
Board: 3.5.04
Headnote: -
Relevant legal provisions:
Rules of procedure of the Boards of Appeal Art 12(1)
Rules of procedure of the Boards of Appeal Art 12(2)
Rules of procedure of the Boards of Appeal Art 12(4)
Rules of procedure of the Boards of Appeal Art 13(1)
European Patent Convention 1973 Art 110
European Patent Convention 1973 Art 113(1)
European Patent Convention 1973 Art 54(2)
European Patent Convention 1973 R 67 Sent 1
EPC Revision Act of 29 November 2000 Art 007
Decision AC of 28 June 2001 on the transitional provisions under Art 7of the EPC Revision Act Art 1, No. 1
Decision AC of 7 December 2006 amending the Implementing Regulations to the EPC 2000 Art 002
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If a European patent application is finally deemed to be withdrawn after an admissible appeal against a decision refusing it has been filed, the appeal can usually be considered disposed of, because there is no possibility of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).

Cited decisions:
J 0003/06
J 0010/07
T 0367/91
T 0654/92
T 0951/97
T 0376/98
T 1001/98
Citing decisions:
T 1402/13
T 0097/18

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