2.9.3 Well-founded appeal within the meaning of Art. 109(1) EPC

An appeal is to be considered "well founded" if at least the main request submitted with the appeal includes amendments which clearly meet the objections on which the decision relies, such that the department of the first instance could reasonably be expected to recognise this and thus rectify its decision. That there are other objections which have not been removed but which were not the subject of the contested decision cannot preclude the application of Art. 109(1) EPC 1973 (T 139/87; T 1060/13; see also T 47/90, OJ 1991, 486; T 219/93; T 919/95). Thus, even if the amendments raise new objections not yet discussed, interlocutory revision must be allowed since an applicant should have the right to two instances (T 1060/13, T 691/18, T 982/18).

According to T 1640/06 objections or remarks made in an obiter dictum of a decision under appeal cannot be taken into account. In T 726/10 the board was of the opinion that the question whether or not the claims filed with the statement setting out the grounds of appeal took into account the remarks made in the obiter dictum was irrelevant for deciding whether interlocutory revision should be granted or not.