2.9.1 General

Under Art. 109(1) EPC, in ex-parte proceedings the department whose decision is contested must rectify its decision if it considers the appeal to be admissible and well founded. This is for reasons of procedural economy. Interlocutory revision is generally not available for decisions in inter partes proceedings, as the appellant should not be opposed by any other party to the proceedings. In exceptional cases, however, an opposition division may correct its decision by way of interlocutory revision if it wrongly revoked a patent for failure to comply with certain requirements despite intending to maintain that patent in amended form pursuant to a final interlocutory decision (see T 168/03).

On expiry of the three-month period under Art. 109(2) EPC 1973, the department of first instance whose decision is contested ceases to be responsible for the matter. Rectification of the decision is then no longer possible (T 778/06).

Art. 109(1) EPC provides an exception to the principle of general devolutive effect of the appeal, in order to allow an interlocutory revision. This exception has to be construed narrowly in connection with the interlocutory revision, and not as a broader entitlement for the department of first instance to decide whether an appeal is admissible (T 1973/09) (see also T 473/91 date: 1992-04-09, OJ 1993, 630, T 808/03 of 12 February 2004 date: 2004-02-12).

In G 3/03 (OJ 2005, 344), the Enlarged Board of Appeal held that the object and purpose of interlocutory revision under Art. 109(1) EPC was to avoid, in the interest of procedural economy, any need to remit clear and straightforward cases to the boards of appeal, it being preferable for the department of first instance whose decision was contested to rectify the decision if it was immediately apparent to that department that its decision could not stand. As to reimbursement of the appeal fee in the event of an interlocutory revision, see chapter V.A.11.4.

In T 1558/18, the two oppositions against the patent had been withdrawn and so the appellant had not been opposed by any other party to the proceedings within the meaning of Art. 109(1) EPC. The appeal being admissible and also well founded with regard to a substantial procedural violation, the opposition division should have rectified its decision itself under Art. 109(1) EPC but had instead remitted the appeal straight to the board. In doing so, it had committed a further substantial procedural violation in relation to the appellant's right to be heard.

In T 638/01 a form was wrongly filled in and the appeal was sent by the formalities officer acting for the opposition division directly to the boards of appeal, bypassing the consideration for interlocutory revision. The board pointed out that since the granting of interlocutory revision in an appropriate case is mandatory, it followed a fortiori that considering a case for interlocutory revision in circumstances where the latter is possible is itself a mandatory procedural step. Since, however, the legislative purpose of Art. 109 EPC is overall procedural economy, it made no sense for the board to remit the case to the department of first instance for performance of this omitted step.