3.2.1 Primary object of the appeal proceedings – Article 12(2) RPBA

As set out in Art. 12(2) RPBA, since the primary object of the appeal proceedings is to review the decision under appeal in a judicial manner, a party's appeal case shall be directed to the requests, facts, objections, arguments and evidence on which the decision under appeal was based. In the explanatory remarks to Art. 12(2) RPBA (Supplementary publication 2, OJ 2020) it is stated that this paragraph provides a general definition of the nature and scope of the appeal proceedings in accordance with the established case law. The boards of appeal constitute the first and final judicial instance in the procedures before the EPO. In this capacity, they review appealed decisions on points of law and fact.

In T 1604/16 the board referred to the explanatory remarks to Art. 12(2) RPBA that the boards have competence to review appealed decisions in full, including points of law and fact. This was in accordance with Art. 6 ECHR, which stipulates that there must be at least one judicial instance that can review a case in full, i.e. the law and the facts, given that the boards of appeal are the only judicial body to review decisions by the departments of first instance of the EPO. The board was well aware that there is case law on a restriction of the boards' competence when reviewing discretionary decisions taken by the departments of first instance in certain circumstances (G 7/93, OJ 1994, 775, and case law based on this decision). However, it did not consider the evaluation of evidence to be a discretionary decision. See also chapter V.A.3.4 "Review of first-instance discretionary decisions" below.