Context and legal framework
After a communication under Rule 71(3) EPC, the applicant approved the text intended for grant and fulfilled the requirements. The EPO then issued the decision to grant and the mention of grant was published in the European Patent Bulletin. During preparation of the published patent specification (B1), page 2 of the description was omitted.
This fact pattern is a classic error in publication: the content of the printed specification differs from the documents (the Druckexemplar / text intended for grant) transmitted with the Rule 71(3) communication and forming the basis of the decision to grant. The EPO Guidelines (H-VI, 6, C-V, 10 ) state that such errors in publication can be corrected at any time.
Importantly, publication errors must be distinguished from cases where the text underlying the grant decision is itself wrong (e.g. changes introduced after approval but before the decision). The Guidelines expressly warn about this distinction (with reference to G 1/10).
Legal Evaluation of Each Statement
a) The error in the published specification may never be corrected. — False
This is incorrect because the omission is an error in publication (a mismatch between the printed B1 and the Druckexemplar). The Guidelines provide that publication errors can be corrected (typically via a corrigendum and/or republication so the printed specification matches the grant basis).
b) The error in the published specification may be corrected at any time. — True
This is exactly what the Guidelines say: “The above errors in publication can be corrected at any time.”
So there is no time limit comparable to “only while proceedings are pending” (which is a concept you may know from other correction mechanisms).
c) The error may not be corrected during the opposition period or if opposition proceedings are pending. — False
Because the correction of errors in publication is possible “at any time”, the mere fact that the opposition period is running or that opposition is pending does not bar correction.
(Separately, the Guidelines also note competence: the competent body is the one before which proceedings are or were last pending, which helps explain how this works procedurally when opposition exists. )
d) The error may only be corrected if opposition proceedings are pending. — False
This is the opposite of the rule. Correction is not conditional on opposition proceedings; it may occur regardless of whether opposition is filed.
Exam Tip:
When you see a post-grant problem, always ask one key question:
Is the printed patent specification (B1) wrong, or was the grant decision based on the wrong text?
- If B1 differs from the Druckexemplar / approved text → error in publication → correctable at any time (Guidelines H-VI, 6; see also C-V, 10).
- If the decision to grant is based on an incorrect text (e.g. something went wrong before or in the decision) → you are in a different remedial framework (appeal/case law), not “publication error correction”.
Legal Disclaimer
The information provided in this post is for general informational purposes only and does not constitute legal advice. This content should not be used as a substitute for professional legal advice tailored to your specific circumstances. For advice related to any specific legal matters, you should consult a qualified attorney.