Appeal based on the same ground for opposition 

In some decisions the appeal was found admissible where the opponent (appellant) introduced a fresh case on appeal concerning the same ground for opposition (T 3/92, T 219/92, T 229/92, T 847/93, T 708/95, T 191/96 and T 509/13).

It was stated as early as in T 611/90 (OJ 1993, 50) that, apart from other deficiencies, an appeal raising a case entirely different from that on which the decision under appeal was based is still admissible if it was based on the same opposition ground. In the case in hand the opponent, on appealing the finding of the opposition division that the patent was novel and inventive, went on to develop what was an entirely fresh case on lack of novelty. Similarly, the appeal was found admissible in T 938/91, where the opponent (appellant) introduced a new alleged public prior use and citation; although a "fresh case" was presented by the appellant to the board, the fresh reasons still fell within the same ground for opposition.

Following T 611/90, the board in T 252/95 held that grounds could be deemed to be sufficient if new facts were submitted which removed the legal basis from the decision. That also applied where the grounds for opposition were based on new facts and there was no discussion whatsoever of the grounds for the opposition division's decision. In T 801/00 the board also found that an admissible appeal can be entirely based on new facts. The arguments presented by the appellant in respect of the new citations were sufficiently clear to enable the board and the other party to understand immediately why the attacked decision was alleged to be incorrect and to which extent it should be cancelled.

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