7. Appeal procedure

In T 911/06 the board stated that applying the general principles of court procedure to the order of the requests of the appellant proprietor might be inconsistent with the purpose of the appeal procedure inter partes as expressed in the decision G 9/91 (OJ 1993, 408). In the board's opinion, examining new requests in the appeal, when the appellant proprietor had also requested examination of the correctness of the first instance decision as a lower ranking request, would effectively reduce the appeal procedure to a simple continuation of the first instance proceedings, although it was apparent from the general logic of the EPC, that the appeal proceedings were wholly separate and independent from the proceedings at first instance. The board noted that it had been established in Legal Advice from the EPO No. 15/05 (rev 2), OJ 2005, 357 as well as in several decisions of the boards that in the case of main and auxiliary requests from the applicant or proprietor in first instance examination and opposition proceedings, the EPO was bound to the order of these requests. However, this principle did not necessarily apply to second instance proceedings before the boards of appeal. In view of the foregoing, the board considered that it was in line with the purpose of the appeal to examine first whether the department of first instance had correctly assessed the substance of the requests presented to it. Thus, in the case at issue, the correctness of the decision refusing the maintenance of the patent as granted had to be examined first, before examining the new amended claims.

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