R0433/2020-3

• ›The applicant (Unclebus Textile) appealed an examiner's decision that changed the filing date of its multiple RCD application (Nos 6929840-0001 to -0010) from 26 September 2019 to 29 October 2019, thereby invalidating priority claims for designs -0001 to -0007, after the fifth view of each design was objected to for lack of neutral background.
• ›The applicant argued: (i) the original filing date had already been determined and could not legally be changed once accorded under Articles 36(1) and 38 CDR; (ii) the neutral background deficiency falls under Article 46(3) CDR such that timely remedy preserves the original filing date; and (iii) even if the fifth view was deficient, the six remaining views satisfied the Article 36(1)(c) CDR requirement; moreover, the applicant had expressly declared deletion of the deficient views within the response to the first examination report.
• ›The Board found that the applicant's unambiguous declaration on 20 November 2019 to delete the fifth view of each design corrected the deficiencies within the prescribed period; accordingly, the filing date of 26 September 2019 must be maintained and the priority claims for designs -0001 to -0007 are valid. The examiner's failure to give the applicant the option to withdraw the deficient views in the second examination report constituted a substantial procedural violation justifying reimbursement of the appeal fee.
• ›The appeal was upheld, the contested decision annulled, the case remitted to the Operations Department, and the appeal fee ordered to be reimbursed.

• ChairTh. M. Margellos
• RapporteurC. Rusconi
• MemberH. Salmi
• RegistrarH. Dijkema

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