2.4.2 Not the same subject of proceedings

In T 194/96 new citations were submitted after the first oral proceedings that were more pertinent than the documents on file and which could and in fact did radically change the nature of the decision. The board held that in such a case the subject of the proceedings could no longer be the same (see also T 441/90).

In T 731/93 the board stated that where fresh evidence had been admitted into the proceedings, the "subject" of such proceedings, as construed by reference to the text of Art. 116(1) EPC 1973 in all three official languages, could no longer be the same.

In T 1880/11 after the board had in a first decision ordered a patent to be granted on the basis of the main request and the description to be adapted accordingly, the examining division refused the application a second time without holding oral proceedings. The board held that there had been a new subject before the examining division, namely how to adapt the description and the figures in order to fulfil the board's order. It could at least have been discussed during oral proceedings whether the section of the first appeal decision on which there was disagreement between the division and the applicant belonged to the ratio decidendi of that decision and how this section should be interpreted.

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