b)
New facts and evidence 

According to the case law of the boards of appeal (see e.g. T 389/95, T 1063/98, T 1029/05, T 1915/09, T 1314/12), an appeal invoking a ground for opposition already invoked in opposition proceedings, i.e. remaining within the same legal framework, albeit being based on a completely fresh factual framework does not ipso facto lead to an inadmissible appeal. However, this finding does not necessarily mean that the new items of evidence only filed during the appeal procedure may not be disregarded by the board (see e.g. T 389/95).

In T 389/95 an appeal was filed on existing grounds for opposition but based solely on new evidence introduced in the grounds of appeal. The board found the appeal to be admissible because the issue of new factual framework was one of fact to be determined objectively as part of the substantive examination of the appeal. G 10/91 allowed even a fresh legal ground for opposition to be considered in appeal proceedings if the patentee approved and it followed from this, that an appeal based solely on such a ground was not ipso facto inadmissible; by the same token an appeal based on the same legal ground, albeit on a completely fresh factual framework, might be admissible. See also T 932/99. According to T 1029/05, it was the consistent jurisdiction of the boards of appeal that an appeal was not to be considered inadmissible merely because it was based on evidence submitted for the first time with the grounds for appeal. See also T 1082/05.

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