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VII.E.6. Extent of scrutiny
In the course of the revision of the EPC, minor editorial amendments were made to the German version of Art. 114 EPC. Only minor amendments were made to the English and French versions of Art. 111 EPC. The requirements for the admissibility of an appeal in Art. 110(2) and (3) EPC 1973 have been moved to R. 100 EPC.
Appeals give losing parties the opportunity to challenge first-instance decisions adversely affecting them, and to try to have them set aside or changed. The appeal constitutes the subject-matter of the proceedings (G 9/91, OJ 1993, 408; G 10/91, OJ 1993, 420, point 18 of the reasons; G 9/92, OJ 1994, 875). The board's power to decide is determined by the appellant's request(s). The legal and factual framework on which the contested decision was based determines the limits within which this power may be exercised (G 9/91, G 10/91, especially point 18 of the reasons). In the case of an opposition, this means that the opponent's first-instance requests determine the extent to which the patent is challenged, and the grounds for opposition to be considered, at both first and second instance. Beyond that, the boards have no power to decide. By way of exception to this principle, dependent claims can be examined if the material already available casts doubt prima facie on their validity, and a new ground for opposition can be considered with the patentee's consent (G 9/91, G 10/91, T 362/87, OJ 1992, 522). The appellant's request also defined the limits for applying Art. 114(1) EPC 1973; beyond it, there was no power to examine the facts (G 9/92, points 3 and 4 of the reasons).
In admissible opposition appeal proceedings, in the absence of a "request" or reply from a respondent indicating that the decision of the opposition division should not be amended or set aside, a board of appeal had still to examine and decide whether the appeal was allowable, in accordance with Art. 110 and 111 EPC 1973 (T 501/92, OJ 1996, 261). The board also upheld T 34/90 (OJ 1992, 454), according to which the procedural statements made during the first-instance proceedings are not applicable to the appeal proceedings.