Omission of Drawings From the Granted European Patent: Limits of “Deemed Approval” & Appeal as a Remedy (T 0550/25)

In T 0550/25 (Technical Board of Appeal, 10 February 2026), the Board addressed a recurring procedural mishap: drawing sheets are missing from the text annexed to a Rule 71(3) EPC communication and the patent is granted without them. The decision is practically significant because it confirms that, in such circumstances, the applicant’s grant fee payment and translations do not necessarily amount to “deemed approval” of an unintended text, and an appeal against the grant decision can restore the correct application documents.

Background

The application was originally filed and published with five drawing sheets. During the examination procedure before the EPO, an omission occurred: the “Druckexemplar” and the set of documents referenced at the Rule 71(3) stage, as prepared by the EPO, contained only a limited set of drawings, although the description continued to list and refer to all figures (Reasons 2.8). The examining division then issued a decision to grant under Article 97(1) EPC on that basis (Summary of Facts, point IX).

Key findings of the decision

1. The factual pattern is not rare and is doctrinally settled. The Board expressly stated that the case “principally corresponds” to earlier decisions T 1224/24, T 1823/23, T 408/21, T 1003/19 and T 2081/16 (Reasons 1), and relied on that line when interpreting Rule 71(3) and (5) EPC (Reasons 2.4).

2. Deemed approval under Rule 71(5) EPC presupposes a compliant Rule 71(3) communication. The Board held that the legal consequence in Rule 71(5) EPC can only apply if the Rule 71(3) communication reflects the examining division’s intention as to the application documents on which the patent is to be granted (Reasons 2.4–2.5). If the communicated text does not correspond to that intention, subsequent fee payment and translations are “ineffective” for deemed approval (Reasons 2.5).

3. Objective discrepancies can show that the communicated text was not intended. Here, the Board found it could “only be concluded” that the omission of drawing sheets was never intended, pointing to (i) the absence of any prior objection or reasoned deletion of drawings, (ii) the fact that the “comments” field in Form 2004C mentioned only minor textual changes, and (iii) the internal inconsistency between a description referring to Figures 1–10 and a “Druckexemplar” containing only two figures (Reasons 2.8–2.9).

4. Appeal was admissible and allowable; remittal ordered. The applicant was adversely affected by the omission of drawings in the granted text (Reasons 2.1, 2.11). Grant on a text neither submitted nor agreed upon contravened Article 113(2) EPC (Reasons 3.1). The Board set aside the grant decision and remitted with an order to grant on the correct set, including drawing sheets 1/5 to 5/5 as originally filed (Order, points 1–2).

5. Rule 140/139 EPC were not the route; appeal fee reimbursement refused. Relying on G 1/10, the Board confirmed that Rules 140 and 139 EPC were not applicable to correct the granted text in this setting (Reasons 4.1–4.3). Although a substantial procedural violation was identified, reimbursement was refused because the appellant had multiple opportunities to spot the discrepancy. In particular, the error was introduced by (the formalities officer of) the examining division already with the supplementary European Search Report, issued on 25 November 2021, and found its way into the communication under Rule 71(3) EPC of 20 September 2024 (Reasons 5.6–5.7).

Analysis and implications

For practitioners, T 0550/25 confirms that an appeal can be used where drawings were omitted by mistake from the Rule 71(3) communication and the omission is only discovered upon reviewing the published patent (the B1 publication of the specification). The appeal route is procedurally important because post-grant correction mechanisms are not available for this kind of errors in the patent specification (Reasons 4.1–4.3).

As to timing, the notice of appeal must be filed within two months of notification of the grant decision (leaving aside the possible effect of Article 97(3) EPC), and the grounds within four months (Article 108 EPC). The B1 publication typically follows “as soon as possible after” the publication of the mention of grant (Guidelines C-V, 10) and the mention of the grant is typically one month after the notification of the grant decision. Therefore, where the omission is first noticed from the B1, there is often still a meaningful (but case-dependent) remainder of the two-month appeal period.

Conclusion

T 0550/25 (10 February 2026) consolidates the now well-established approach that Rule 71(5) EPC deemed approval requires a Rule 71(3) communication genuinely reflecting the examining division’s intended text. Where drawings are inadvertently omitted by the EPO when preparing the text for grant and the proprietor discovers this from the B1 publication, an appeal against the grant decision remains a viable procedural remedy—subject to the strict two-month time limit from notification of the decision to grant.

Source: Case law | V.O. Patents & Trademarks