b) Technical board of appeal competent

Article 21(3)(a) EPC expressly states that appeals against decisions concerning refusal of a European patent application or the grant, limitation or revocation of European patents are to be heard by the technical boards of appeal.

An appeal against a decision of an examining division refusing a request under R. 89 EPC 1973 (R. 140 EPC) for correction of the decision to grant was to be decided by a technical board of appeal (G 8/95, OJ 1996, 481, overruling J 30/94). (A board, however, has no appellate competence, in inter partes opposition appeal proceedings, to review the decision on correction of the grant decision taken in ex parte examination proceedings under R. 89 EPC 1973, since that decision does not form the subject of the appeal roceedings before it; see T 79/07, deviating from T 268/02; see also e.g. T 1495/09).

According to T 1382/08, for the purpose of determining competence under Art. 21(3) EPC 1973, a contradictory or unclear impugned decision is to be considered in the light of its legal consequences vis-à-vis the applicant or the impression given to the public as to its legal nature. In the case at issue, it was unclear whether the contested decision of the examining division was actually a refusal of the application or, instead, merely a refusal of a request for a refund of the search fee or confirmation of the loss of rights established in the R. 69(1) EPC 1973 (R. 112 EPC) communication. In the latter two cases, the Legal Board would have been competent to hear the appeal under Art. 21(3)(c) EPC 1973. The board found that the decision had the effect of a refusal, which meant that the technical board of appeal was competent.

However, in J 16/13, the board held that, where the formal order of an appealed decision is obviously erroneous to such an extent that it is essentially incomprehensible when compared with the reasons in the body of the decision, in particular when it plainly does not correspond to any of the foreseen possible legal effects flowing from the substantive issue underlying the appealed decision, and if the competence pursuant to Art. 21(3) EPC is supposed to change from one board to another only because of such an "impossible" order, the formal order can be disregarded for the purposes of Art. 21(3)(a) and (c) EPC, and rather the substantive request underlying the decision must be guiding in determining the board competent to decide the case (T 1382/08 not followed).