9.5.10 Error of judgment by a department of first instance

In T 658/12 the board held that an insufficiently reasoned decision had to be distinguished from a decision that had faulty or unpersuasive reasoning. The board concluded that while the COMVIK approach may have been incorrectly applied in the case in hand, this was a substantive issue, only involving judgement. Thus, the board found that the decision was reasoned in the sense of R. 111(2) EPC. The board also found that the examining division had not acted unreasonably, as claimed by the appellant (applicant), by not admitting the second auxiliary request. The board held, therefore, that there was no basis for reimbursement of the appeal fee (see also T 690/06).