2.9.2 The department of first instance's obligation to rectify the decision

In case T 139/87 (OJ 1990, 68) the board of appeal made it clear that an appeal by an applicant for a patent was to be considered well founded within the meaning of Art. 109(1) EPC 1973 if the main request of the appeal included amendments which clearly met the objections on which the refusal of the application had been based as indicated by the examining division. In such a case, the department that issued the contested decision must rectify the decision. Irregularities other than those that gave rise to the contested decision do not preclude rectification of the decision (see also T 47/90, OJ 1991, 486; T 690/90; T 1042/92; T 1097/92; T 219/93; T 647/93; OJ 1995, 132; T 648/94; T 180/95; T 794/95; T 1120/11; T 410/14 and T 2303/16).

Similarly, according to T 1060/13 it is established case law of the boards of appeal that, in the event that the appeal is objectively to be considered as admissible and well founded, the department of first instance is obliged to grant interlocutory revision (T 139/87, OJ 1990, 68; T 180/95; T 2528/12; T 1362/13); there is no room for discretion in the interests of procedural efficiency (G 3/03, OJ 2005, 344; J 32/95, OJ 1999, 713; T 919/95).

In T 2445/11 the board was aware that its interpretation of Art. 109(1) EPC was not fully in line with the views expressed in T 1060/13, even though the outcome was the same. According to T 1060/13, interlocutory revision must be allowed if the main request filed with the statement of grounds of appeal clearly overcomes the grounds for refusal, it being irrelevant whether amended claims give rise to new objections or suffer from deficiencies that are themselves the subject of observations included by way of obiter dicta. In the board's view in T 2445/11, this approach may sometimes be too rigid, as it leaves no room for a pragmatic assessment of the situation with a view to procedural efficiency and may result in a needless repetition of the first-instance proceedings, forcing the applicant to pay a second appeal fee.

In T 508/13 the board stated that the expression "considers the appeal to be ... well founded" in Art. 109(1) EPC leaves an examining division room for exercising judgment while bearing in mind that the purpose of interlocutory revision is to speed up the procedure (see T 2445/11). At the same time, once an examining division has decided not to rectify a refusal decision, the possible incorrectness or inappropriateness of not rectifying it is in itself insufficient reason for an immediate remittal of the case: the opportunity to cut short the appeal procedure by means of interlocutory revision has in any event passed. Rather, it has to be assessed whether an immediate remittal is appropriate in view of the overall state of the case.