8.4.4 Rectification decision maintaining earlier decision

According to T 691/91, Art. 109 EPC 1973 provided for two legally viable alternatives: to maintain or to annul the decision which was appealed. In the case at issue, the examining division had chosen a third way; maintaining the earlier decision by issuing a decision on rectification. This alternative was not covered by the provisions of Art. 109 EPC 1973. The way in which the examining division proceeded resulted in the appellant's having to file a second appeal against the decision on rectification. The board ordered reimbursement of the second appeal fee because the decision on rectification was ultra vires, and reimbursement of the first appeal fee because a violation of the right to be heard had occurred during the examination proceedings (see also T 252/91).

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