9.5.10 Error of judgment by a department of first instance
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The fact that a board comes to a different conclusion from the department of first instance does not by itself mean that the latter has committed a substantial procedural violation within the meaning of R. 103(1)(a) EPC (R. 67 EPC 1973), which would necessitate reimbursement of the appeal fee (T 87/88, OJ 1993, 430; see also T 538/89; T 182/92; J 14/12; T 203/15; T 997/15).
In T 182/92 the board stated that the fact that the first instance reached a conclusion regarding the document of priority which could not be confirmed by the board was a matter of interpretation of a document, i.e. a matter of judgement, which could not amount to a procedural violation.