no decision, no revision

R4 / 18: no decision, no revision

The Claimant had drafted a request for review and a ” formal complaint ” (63 pages!), Filed by a representative.

During the oral proceedings.before the Board of Appeal, in which the Claimant’s inventor took part, the various applications were considered contrary to Article 123 (2) EPC and after the Chamber decided to not to admit the auxiliary request 23 in the proceedings, the representative asked whether he could still withdraw the appeal. The Chamber having answered in the affirmative because the decision had not yet been pronounced, the appeal was withdrawn.

According to the Claimant, the attorney represented the Chamber rather than his client, which indicated a collusion between her agent and the Chamber. The attorney had repeatedly prevented the inventor from expressing herself, and the Chamber had encouraged her in this way, laughing as soon as the agent tried to silence her. The withdrawal of the appeal was not valid because his representative did not represent the Claimant, and the Chamber had urged the withdrawal of the appeal so as to impose its conclusions, preventing the Claimant from defending himself.

As a preliminary matter, the Grand Chamber notes that the Claimant has not proved that the mandate of his representative had ended before the oral proceedings; on the contrary, it was only 3 months after the Claimant changed the agent. The Chamber also did not urge the withdrawal of the appeal, it merely answered the question put by the representative. The Claimant has finally not proved the slightest collusion between the Chamber and its representative; it only criticized the professionalism of the latter.

Last but not least, Article 112a (1) EPC provides that an application for review may only be lodged against a decision, and the minutes of the oral proceedings are not a decision.

The fact that a document constitutes a decision or not depends on its content rather than its form, and the content must be understood in the procedural context, that of an appeal procedure terminated by the withdrawal of the appeal by the sole applicant.
Another characteristic of a decision is that it implies a reasoned choice between two legally valid alternatives ( T934 / 91 ), which is not the case of a report, the purpose of which is to reflect an oral procedure ( T231 / 99 ).

Finally, the use of the term “conclusion” rather than “preliminary opinion” does not make a record of a decision as to the points on which the conclusion was made. The practice of Chambers is to express opinions or conclusions on substantive issues during the oral proceedings. On procedural matters, such as the admissibility of a document or an application, the Chamber necessarily makes “decisions” (which it has done here in respect of auxiliary request 23). But this is the only decision made, as the appeal proceedings were terminated by the withdrawal of the appeal.

The decision to review is inadmissible.