2.9.5 "Cassatory" or "reformatory" interlocutory revision

In T 919/95 the appellant was of the opinion that an interlocutory revision had to result in the appeal being allowed. A "cassatory" revision that merely set aside the contested decision and resumed the suspended proceedings was not compatible with the EPC. The interlocutory revision had to be a 'reformatory' revision, i.e. one that conferred on the appellant something that the contested decision deprived him of. The board stated that the requirements of Art. 109 EPC 1973 were met if the reason for the contested decision were removed as a result of an admissible appeal; once the contested decision had been set aside the requested decision could be taken, or the proceedings could be resumed, since further examination was required of new grounds or facts. The latter did not rule out a subsequent refusal. The purpose of interlocutory revision was to speed up the procedure. If an examining division rectified a decision under Art. 109 EPC 1973 merely in order to grant a patent according to an auxiliary request, even though the applicant insisted on his main request, the procedure was not thereby accelerated but slowed down and this would constitute a substantial procedural violation (see also T 142/96).

In J 5/08 the Legal Board stated that according to established EPO practice, interlocutory revision under Art. 109 EPC 1973 could either be such as to annul the decision (a "rein kassatorische Abhilfe", or purely "cassatory" act) or it can be a "reformatory" revision. In both cases, and whether or not the cancellation of the appealed decision is expressly ordered, the appealed decision is set aside by the department of first instance, in the first case by a "cassatory" procedural act, e.g. by a communication providing for the further examination of the application or, in the second case, by a revision decision immediately revising the appealed decision.