I. If a new ground for allowing the appeal based upon the facts
set out in the file record is raised by an Appellant for the
first time as a new argument during oral proceedings at which
the Respondent is voluntarily absent, it would be contrary to
Article 113(1) EPC and contrary to the principles underlying
decision G 0004/92 (OJ EPO 1994, 149) to decide to allow the
appeal on the basis of this new ground without first giving the
Respondent an opportunity to comment thereon.
II. Any procedural request made by a party to first instance
proceedings before the EPO is not effective or applicable within
subsequent appeal proceedings (following decision T 0034/90, OJ
EPO 1992, 454).
III. In a Notice of Appeal, the statement pursuant to Rule 64(b)
EPC of the "extent to which amendment or cancellation of the
decision is requested" defines the legal framework of the appeal
proceedings (following Decision G 9/92, OJ EPO 1994, 875).
IV. In admissible opposition appeal proceedings, in the absence
of a "request" or reply from a Respondent indicating that the
decision of the Opposition Division should not be amended or
cancelled, a Board of Appeal must still examine and decide
whether the appeal is allowable, in accordance with Articles 110
and 111 EPC.
