2.6.2 Procedural aspects
Under Art. 24(3) REE, if the Examination Board or the Secretariat considers the appeal to be admissible and well-founded it must rectify its decision and order reimbursement of the appeal fee. If the appeal is not allowed within two months of notification of the decision, it is remitted to the DBA.
In D 5/19 and D 8/19 the board pointed out that the Examination Board's powers of rectification under Art. 24(3) REE form an exception to the devolutive effect of an appeal. The term "well-founded" (German "begründet", French "fondé") refers to a situation in which the Examination Board considers that the reasons which it gave for a decision which is then appealed no longer hold in light of the appeal submissions, i.e. if the appeal removes the reasons underlying the contested decision, for example, if parts of the appellant's answers to a paper have been overlooked and not marked. In this context, "rectify" (German "abhelfen", French "faire droit") is to be understood as "correct" or "amend".
However, the brevity of the period under Art. 24(3) REE does not always allow the Examination Board to review the matter in full before it expires. To impose such a constraint can hardly have been the legislator's intention, and so it is reasonable to infer that, within the period for rectification, the Examination Board may also opt to set aside the contested decision (simple annulment) and resume the proceedings before it. If, on the other hand, the Examination Board considers the appeal to be either inadmissible or unfounded, it must refer the case to the DBA, as a rule without giving reasons, since such reasons would amount to a decision on the merits of the appeal. In summary, the Examination Board normally has the following options under Art. 24(3) REE: it can either annul the contested decision and replace or not replace it by a rectified decision, or refer the case to the DBA without giving reasons.
According to the board, this interpretation of Art. 24(3) REE was in line with the main purpose of interlocutory revision to shorten the appeal proceedings in the interests of procedural expediency and economy, which is to the benefit of both the appellant and the EPO. Moreover, if rectification is granted, unnecessary work is avoided for the DBA. Even though it entails resuming the administrative proceedings, the Examination Board can normally be expected to resolve the contentious issues more expediently by this means than on remittal after a full consideration of the appeal by the DBA. Given the limited powers of review accorded to the DBA under Art. 24(1) REE, a resumption of the proceedings before the Examination Board can even be to an appellant's advantage in the sense that - in contrast to the appeal procedure before the DBA - it allows a review of the entire examination procedure, including the re-marking of an appellant's answer to an examination question.
See also earlier cases D 38/05 of 17.01.2007 date: 2007-01-17 and D 4/06 on decisions of the Examination Board, D 3/18 and D 4/18 on decisions of the Secretariat, as well as D 3/14 in this chapter V.C.2.6.4 concerning the pre-examination.