3.1. When is there a decision?

On when a decision is open to appeal before the boards, see chapter V.A.2.2.2 "Decisions".

Determining whether there is a decision depends on the substance of the document content and not its form (J 8/81, OJ 1982, 10; J 26/87, OJ 1989, 329; J 43/92; T 222/85, OJ 1988, 128, T 713/02; J 14/07 and T 165/07). The criterion of substance has to be assessed in its procedural context (see T 713/02, OJ 2006, 267). The decisive question was whether the document at issue, when objectively interpreted in its context, could have been understood by its addressees as a final, i.e. not merely preliminary, and binding determination of substantive or procedural issues by the competent organ of the EPO (T 165/07). A decision of the EPO may be, but ought not to be, given in a document which in form appears to be merely a communication (J 8/81, OJ 1982, 10).

In T 1093/05 (OJ 2008, 430) the board expressly deviated from the view held in T 971/06 that a flawed decision was void. A flawed decision could be set aside only following an admissible and allowable appeal (as in G 12/91, OJ 1994, 285; G 4/91, OJ 1993, 707; T 371/92, OJ 1995, 324; T 1081/02; T 830/03; T 222/85).

In T 222/85 (OJ 1988, 128) the board noted that the contents of a "communication" never constituted a "decision". This distinction was important, because only a "decision" could be the subject of an appeal ‑ see Art. 106(1) EPC 1973. In the case at issue the communication only represented a preliminary view, on an ex parte basis, and was not binding upon the department of the EPO which sent it. In contrast, the contents of a "decision" were always final and binding in relation to the department of the EPO which issued it, and could only be challenged by way of appeal.

In T 999/93 the annex to the minutes of the oral proceedings had been sent, but not the decision itself. The annex – although containing reasons – did not validly fulfil the function of a decision in writing since it did not bear any name or signature. If a decision of a particular division is to be legally valid, it must have been written on behalf of and represent the views of the members who were appointed to that division to decide the issues forming the subject of the decision, and it must bear signatures which indicate this (see T 390/86, OJ 1989, 30).

In J 14/07 the board held that the communication refusing the request for reimbursement of 50% of the examination fee constituted a decision within the meaning of Art. 106(1) EPC 1973. The mere indication of the name of the formalities officer without any signature, but which had been replaced by a seal, complied with the requirements of the then current R. 70(2), first sentence EPC 1973 because the communication was produced by using a computer. The formalities officer was also competent to decide on the request for reimbursement of the fee; see R. 9(2) EPC 1973 in conjunction with the Notice from the Vice-President of Directorate-General 2 of the European Patent Office dated 28 April 1999 concerning the entrustment to non-examining staff of certain duties normally the responsibility of the examining or opposition divisions, OJ 1999, 504. See now Decision of the President of the European Patent Office date 12 December 2013 (OJ 2014, A6).

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