3.2. Remedies under the PCT applied by the EPO as designated Office
The appeal in J 3/00 concerned the question whether the Receiving Section should have rectified, under R. 82ter PCT, a purported error of the RO/EPO for the purposes of the regional phase before the EPO. The international application had been filed two days before expiry of the priority period with the description and claims in Swedish by mistake. The RO/EPO accorded as the international filing date the day of receipt of the corrected, i.e. English-language, documents (Art. 11(2)(b) PCT) and furthermore cancelled the priority claim. The applicant argued that the RO/EPO should have warned it of the deficiency. The Legal Board examined whether the filing date of the international application was incorrect due to an error made by the RO/EPO which was such that, had it been made by the EPO (as designated Office) itself, it would have to be rectified under the EPC (R. 82ter PCT). Thus, according to the constant jurisprudence of the boards of appeal concerning the protection of legitimate expectations, as confirmed in G 2/97 (OJ 1999, 123), the EPO was required to warn the applicant of any loss of rights if such a warning could be expected in all good faith. The Legal Board found the relevant conditions to be met: the deficiency was immediately identifiable on the face of the application in the course of the Art. 11(1) PCT check and the applicant was in a position to correct it at very short notice. For a further case relating to R. 82ter PCT, see J 10/04.