9.6.1 Requirements

Pursuant to Art. 109 EPC a department whose decision is contested must rectify its decision if it considers the appeal admissible and well founded; this applies in ex parte cases only. R. 103 EPC (R. 67 EPC 1973) allows for reimbursement of the appeal fee in the case of interlocutory revision. In G 3/03 (OJ 2005, 344) it was held that the grant of interlocutory revision constituted a necessary, but not sufficient, prerequisite for the department of first instance to allow a request for the reimbursement of appeal fees (see also T 1222/04). In T 939/95 the words "if such reimbursement" in R. 103 EPC were held to refer both to interlocutory revisions and appeals, meaning that it was also a prerequisite for interlocutory hearings that a substantial procedural violation had occurred and that reimbursement was found equitable in the discretion of the deciding body (see also T 79/91, T 536/92).

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