11.6.10 Error of judgment by a department of first instance
In T 19/87 (OJ 1988, 268, see also above in this chapter at V.A.11.6.7 a)) the board found the examining division had made an error of judgement and not a procedural violation when it erroneously held the appellant had made no request for oral proceedings. The board found there was no basis for ordering reimbursement of the appeal fee in accordance with R. 67 EPC 1973.
In T 621/91 the board held that misinterpretation of a letter to an EPO department constituted an error of judgment and not a substantial procedural violation.
In J 9/05 and J 18/05 the board had to decide on the examining division's decisions that R. 69(1) EPC 1973 communications were deemed to have been duly delivered to the addressees on the tenth day following its posting. The board held in each case that whilst the examining division had evaluated the evidence as to the postal delivery incorrectly, this amounted to an error of judgment and could not be characterised as a procedural non-compliance, a prerequisite for the application of R. 67 EPC 1973.