3.13. Effects of a successful petition for review
3.13.1 Decision of board of appeal set aside
If the petition is allowable, the Enlarged Board sets aside the decision of the board of appeal and orders the re-opening of the proceedings before the board (R. 108(3) EPC). The limitation of the petition for review to a particular part of the decision (e.g. the non-reimbursement of the appeal fee) is admissible.
In R 19/12 of 12 April 2016 date: 2016-04-12, the Enlarged Board held that although Art. 112a(5) EPC and R. 108(3) EPC did not explicitly provide for setting a decision aside only partially, this possibility followed from general procedural principles (see also R 16/14).
In T 379/10 of 21 September 2015 date: 2015-09-21 the board cited R 21/11, in which it was held that the re-opening of appeal proceedings did not mean that the parties had to be given another opportunity to comment on all the matters in dispute. Rather, proceedings re-opened after a successful petition for review had to be restricted to rectifying the defect found in the review decision.
- T 695/18
Catchword:
1. "Proceedings" to be re-opened under Article 112a(5) EPC following an allowable petition are limited to rectifying the defect found according to the review decision. The present proceedings as re-opened by the Enlarged Board in R 3/22 are thus not the appeal proceedings, but "ancillary proceedings" with the limited purpose to decide on the request for correction of the withdrawal of the appeal (see point 2 of the Reasons). 2. Rule 139 EPC is applicable only if proceedings before the EPO for some other purpose are pending when the request for correction is received by the EPO. The request for correction is inadmissible if received when no such proceedings are pending (see point 3 of the Reasons). 3. A patent application subject to the examining division's refusal, which is in turn subject to an appeal that has been withdrawn, is not "pending" within the meaning of Rule 36(1) EPC (see point 4 of the Reasons).
- 2023 compilation “Abstracts of decisions”