According to the established case law of the boards of appeal, the doctrine of prohibition of reformatio in peius cannot be construed to apply separately to each point or issue decided, or the reasoning leading to the impugned decision (see T 149/02). If an appeal is lodged against an adverse decision of the department of first instance about the main request, then the whole request is before the board of appeal and within its jurisdiction, and the board is empowered to reopen and to decide upon matters which have been an issue before the opposition division (see T 327/92, T 401/95, T 583/95, T 576/12). The prohibition of reformatio in peius relates solely to the legal effect of an impugned decision; it does not apply to individual issues or objections (T 1924/18, with reference to T 1437/15).
- T 803/17
The yardstick for determining whether the position of an appellant is, because of its own appeal, worsened in a way which is incompatible with the principle of the prohibition of reformatio in peius is the order of the decision under appeal, in particular the order's legal effect on the appellant. If an opposition is considered inadmissible in the appeal proceedings, an appellant whose opposition was rejected in the decision under appeal as unallowable would not be in a worse position than if it had not appealed, as in both cases the patent would be maintained as granted. The legal reasons leading to this result, including whether the opposition is rejected as inadmissible or unallowable, do not fall within the scope of the principle of the prohibition of reformatio in peius (Reasons 3.5).
- Annual report: case law 2022
- Summaries of decisions in the language of the proceedings