4. Binding nature of decisions on appeals 

If a department has to give a decision in a case which has already been remitted to it by the board of appeal for further prosecution, it is bound by the ratio decidendi of the board of appeal in so far as the facts, e.g. the subject-matter of the patent and the relevant prior art, are the same.

An opposition division is not bound by a decision of a board of appeal on appeal against a decision from an examining division (see T 167/93). The exclusive wording of the last sentence of Art. 111(2), which says only that examining divisions are bound by the decision on appeal against a decision of the Receiving Section, makes this clear. Opposition proceedings are entirely separate from the examination proceedings, and the opposition division is free to re-examine the facts, evidence and arguments, particularly since another party (the opponent) is now involved. However, it must take due account of the assessment of these facts, evidence and arguments in the reasons for the decision of the board of appeal.