Interlocutory revision 

In T 1832/10 the board stated that notwithstanding the amendments contained in the claims and carried out by the appellant in an attempt to overcome the objections raised, the examination division did not make use of the possibility of granting interlocutory revision pursuant to Art. 109(1) EPC. However, according to the established case law (T 139/87, OJ 1990, 68), an appeal by an applicant was to be considered well-founded within the meaning of Art. 109(1) EPC if the main request included amendments which clearly met the objections on which the refusal of the application has been based. In view of the fact that it is not normally the function of the appeal board to consider and decide upon claims which were filed during the prosecution of the examination but were neither commented nor decided upon by the examining division and in order to give the appellant an opportunity to have the issue decided upon by two instances, the board remitted the case to the first instance.

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