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Admissible appeal?

· EPO,Appeal,reminder

The examining division decided to refuse a European patent application. The decision dated 02.09.2018 was sent by the EPO to the representative of the applicant without a written communication of the possibility of appeal.

Today, the applicant instructs his representative to file an appeal.

Would such an appeal be admissible?

Proposed reply:

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The decision of the Examining division should have pointing out the possibility of appeal and drawing the attention of the parties to Articles 106 to 108, the text of which shall be attached (R 111(2) EPC).

In this case the decision fails to point out the possibility of appeal. However, the applicant may not invoke the omission of the communication (last sentence of R 111(2) EPC).

The decision of the examining division dated 02.09.2018 is deemed received on 12.09.2018 (R 126(2 EPC). Therefore, the 2 month time limit for filing the notice of appeal (Art 108 EPC) has lapsed on:

12.09.2018 + 2 months = 12.11.2018 (R 131(4) EPC).

Finally, the appeal would be deemed not filed because the notice of and the appeal fee cannot be paid in time.

This proposed response is not a legal opinion and does not engage the responsibility of Cabinet Novitech and should not replace the consultation of a Patent Attorney.

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