b) Indication of the extent to which the decision impugned is to be amended 

The decisions below concern the application of R. 64(b) EPC 1973, in particular the requirement concerning the extent to which amendment or cancellation of the decision was requested in the notice of appeal. This request, reworded, now forms part of the statement of grounds; R. 99(2) EPC.

It was sufficient to fulfil the requirements of R. 64(b) EPC 1973 if the extent of the request made on appeal could be inferred interpreting the notice of appeal in an objective way (T 85/88, see also e.g. T 32/81, OJ 1982, 225; T 7/81, OJ 1983, 98; T 1/88, T 533/93, T 141/95 and T 308/97).

T 631/91, T 727/91 and T 273/92 confirmed the principle that the appeal's scope could be ascertained from the appellant's overall submissions if the request filed in the appeal proceedings did not make this clear. Since no indication was made to the contrary in the appellant's submissions, the board of appeal assumed that he wished to file a request in the appeal proceedings along the same lines as that filed in the opposition proceedings (see also T 925/91, OJ 1995, 469; T 194/90 and T 281/95).

The wording "... we hereby file notice of appeal to the decision ..." was construed in T 632/91 as a request to set aside entirely the decision under appeal and to grant a patent on the basis of the documents of the European patent application to which the decision under appeal referred. This was followed in T 49/99 and T 1785/06. See also T 9/08 for a corresponding application under R. 99(2) EPC.

If the only ruling in an opposition division decision was that the patent was revoked, a statement by the patent proprietor that he was appealing against the decision was invariably tantamount to his stating that he wished and hence requested that the decision be set aside in its entirety, because setting aside had to be unitary. Hence the content of the notice of appeal was what R. 64(b) EPC 1973 demanded as one of its requirements for an admissible appeal, i.e. a statement identifying the extent to which cancellation of the decision was requested (T 407/02). This has also been applied under R. 99 EPC; see T 912/08, T 624/09, T 689/09 and T 1188/09.

However, where the decision under appeal related to more than one different legal issue, the statement identifying the extent of the appeal as prescribed by R. 64(b) EPC 1973 had to make it clear which issue(s) of the decision were also subjects of the appeal (T 420/03). As the notice of appeal was completely silent on the apportionment of costs and there was nothing which indicated that the decision should be set aside in its entirety, this issue was not within the extent of the appeal.