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Case Law of the Boards of Appeal

2.6.2 Time limit for appeal / rectification of decisions

The notice of appeal, to be filed within one month from notification of the contested decision, must already include the statement setting out the grounds (cf. Art. 24(2) REE). 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 from notification of the decision, it is remitted to the DBA. The procedure according to Art. 27 REE 1994, which was the subject of the following two decisions, has therefore been streamlined.

In D 38/05 of 17.1.2007 and D 4/06 the DBA found that the provision for rectification of decisions of the Examination Board was modelled on Art. 109(1) EPC and designed to serve the same purpose in comparable situations. The aim, in either case, was that the department of first instance be able to set aside a decision of its own if it found an appeal against that decision, filed by the (sole) party, to be (admissible and) allowable. This was a quick and simple way of cancelling flawed decisions. Art. 27(3) REE 1994 (analogous to Art. 109(1) EPC) provided that the department whose decision was contested - in this case, the Examination Board - must rectify its decision if it considered the relevant requirements to be fulfilled. This also meant that the Examination Board was obliged to assess carefully whether or not these requirements were met before deciding to grant or refuse rectification and, in the latter case, referring the matter to the board of appeal. The two-month time limit for considering the appeal and deciding whether it must be allowed therefore only started to run on receipt of the statement of grounds for appeal, even though this was not expressly provided in Art. 27(3) REE 1994 - in contrast to Art. 109(2) EPC. See, however, the current provisions of Art. 24(2) and (3) REE, referred to in the previous paragraph.