2.2.3 Interlocutory decisions

Under Art. 106(2) EPC (formerly Art. 106(3) EPC 1973) a decision which does not terminate proceedings as regards one of the parties (interlocutory decision) can only be appealed together with the final decision, unless the decision allows a separate appeal. The EPC does not explicitly set out the cases in which interlocutory decisions have to allow a separate appeal. Instead, the legislator has expressly left it to the department making the decision to decide whether to allow an appeal; see the "travaux préparatoires" for the EPC 1973 (T 1954/14). It is settled practice to allow a separate appeal against interlocutory decisions on admissibility of an opposition (see e.g. proceedings in T 10/82, OJ 1983, 407) or a finding that a patent as amended meets the requirements of the EPC (see e.g. T 247/85 and T 89/90, OJ 1992, 456).

It is a requirement for admissibility of an appeal against an interlocutory decision within the meaning of Art. 106(2) EPC that the department of first instance allowed a separate appeal (J 8/11).

In T 857/06 the board stated that a first interlocutory decision which does not allow a separate appeal can be appealed together with a second interlocutory decision which does not leave any substantive issues outstanding and which allows a separate appeal.

The board in T 756/14 observed that allowing a separate appeal against an interlocutory decision under Art. 106(2) EPC is a constitutive decision by the examining decision without which the former decision cannot be challenged by way of an appeal and so this aspect must be included in the order too. See also T 1967/20.