9.6.4 A rectification decision maintaining earlier decision

In T 691/91 the board held that Art. 109 EPC 1973 provided for two legally viable alternatives: to maintain or to annul the decision which was appealed. In the case at issue, the examining division had chosen a third way: to maintain the earlier decision by issuing a decision on rectification, which resulted in the appellant having to file a second appeal against the decision on rectification. This alternative was not covered by the provisions of Art. 109 EPC 1973. This decision was thus held to be ultra vires and the board ordered reimbursement of the second appeal fee. Reimbursement of the first appeal fee was also ordered because a violation of the right to be heard had occurred during the examination proceedings (see also T 252/91).

Quick Navigation