In ex parte cases too, proceedings before the boards of appeal are primarily concerned with reviewing the contested decision.
In T 2154/15 the board observed that the legal framework had been interpreted by the Enlarged Board in G 10/93 (OJ 1995, 172), which had held that in ex parte proceedings the boards of appeal were restricted neither to examination of the grounds for the contested decision nor to the facts and evidence on which that decision was based, and could include new grounds in the proceedings. Proceedings before the boards of appeal in ex parte cases were primarily concerned with examining the contested decision. If, however, there was reason to believe that a condition for patentability might not have been satisfied, the board either incorporated it into the appeal proceedings or ensured by way of referral to the examining division that it was included when examination was resumed. Stating that Art. 111(1) EPC gave the boards discretion and that they could not be deprived of this discretion by the RPBA, the board concluded that the RPBA 2020 did not limit the powers of the boards as laid down in Art. 111 EPC.