(OJ 1993, 630) was concerned with jurisdiction over the request for re-establishment of rights in respect of the time limit for filing a notice of appeal
. The board noted that the admissibility of an appeal under Art. 109 EPC 1973
(interlocutory revision) only fell under the jurisdiction of the department of first instance when this question could be decided immediately on the basis of the appeal submissions themselves (notice of appeal and statement of grounds, date of payment of the appeal fee). Consequently, the boards of appeal
had exclusive jurisdiction over a request for restitutio in respect of a time limit relating to the appeal itself (Art. 108 EPC 1973
) (see also T 949/94
). The board stated that in the system for appellate review by a separate higher instance, as foreseen by the Convention in accordance with the principle of devolutive legal remedy, a final decision (as distinct from a decision that was no longer appealable as a result of the time for appeal having lapsed) by a lower instance effectively severed the case from that instance, in so far as the decision had settled all pending issues on their merits. As an exception to the principle of devolutive legal remedy, Art. 109 EPC 1973
provided for rectification by the department of first instance. Being an exception to the system of devolutive appeals, this provision had, however, to be construed narrowly. The board held that since the outcome of the admissibility issue was dependent on the outcome of the issue of restitutio in integrum, the request for restitutio had to be decided by the board of appeal.