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VII.E.3. Devolutive effect of the appeal
The provisions of Art. 110(2) and (3) EPC 1973 can now be found in R. 100(2) and (3) EPC respectively, substantially unchanged.
On appeal, the first instance loses its competence for the further prosecution of the application for all contracting states - the appeal does not leave a part of the application pending in the first instance. Thus, deemed withdrawal of the application pursuant to Art. 110(3) EPC 1973 applied in the case of a failure to reply to a communication pursuant to Art. 110(2) EPC 1973 in ex parte appeal proceedings, even where the decision under appeal did not refuse the application, but only a particular request. The board reasoned that even if the appealed decision concerned only the designation of a state and not the application as a whole, according to the principle of unity of the application and of the patent in the proceedings the suspensive effect of the appeal affected the application as a whole. Since it was bound by the Convention, a deviation from the clear wording of a provision of the Convention could only be considered if the provision was in breach of a higher legal principle or was purely arbitrary. The board decided it was not, as the validity of a designation was part of the grant procedure - the decision to grant had to identify the states for which the patent was granted (J 29/94, OJ 1998, 147).
The devolutive effect of the appeal does not affect the competence of the department of first instance to decide on a request concerning the contents of the minutes of the oral proceedings held before it. What is devolved is the subject-matter decided by the appealed decision (T 1198/97).
According to T 1382/08, the devolutive effect of an appeal before a board extends only to that part of the impugned decision which is indicated in the statement of grounds for appeal and actually challenged by the appeal. For the board, therefore, the extent to which the impugned decision is to be amended, as defined under R. 99(2) EPC, is simultaneously the limit of the devolutive effect. This in turn implies that the impugned decision's part not covered by the statement of grounds of appeal also cannot be part of the appeal proceedings and consequently becomes final on expiry of the time limit for appeal.