2.6.3 Content of the statement of grounds of appeal
Decisions T 213/85 (OJ 1987, 482) and T 95/10 clarify that the appeal procedure is not a mere continuation of the examination procedure (in accordance with decisions G 10/91, OJ 1993, 420; G 9/92 date: 1994-07-14, OJ 1994, 875 and G 4/93, OJ 1994, 875), but separate therefrom. Where the applicant in the grounds of appeal repeats its arguments set out during the examination phase without taking into account the decision under appeal, it mistakes the function of the boards of appeal; they are not a second go at the examination procedure, but are meant to review decisions made by the examining divisions, based on the objections raised against the decision in the grounds of appeal, which must therefore relate to the reasons on which the decision under appeal is based.
It is the boards' settled case law that this statement has to deal with all the main reasons for the contested decision in order to be considered sufficient for the purposes of admitting an appeal (T 1904/14). A statement of grounds failed to meet the minimum requirements if it dealt with only one of several grounds for refusal (T 1045/02, T 473/09, T 231/14, T 2411/16, T 918/17, T 868/18). Any ground that can justify a refusal when considered in isolation, independently of the other grounds stated in the decision, is considered a ground for refusal (T 231/14). In T 1904/14, the board held that this principle applied even if the grounds given in the contested decision were wrong or contradictory. A wrong, contradictory or incomplete decision did not absolve an appellant of the need to address any such deficiencies in the statement of grounds of appeal. A sufficient statement of grounds had to be filed by the deadline in Art. 108, sentence 3, EPC; a failure to so could not be remedied retroactively with a late submission.
Where there had been several independent reasons for the decision to refuse the application and at least one of those reasons was not addressed in the statement of grounds at all or only in insufficient detail, the board could not normally reverse the contested decision, even if it concurred with the appellant in relation to all the reasons for refusal addressed in the statement of grounds. The requirement of Art. 108, R. 99(2) EPC were not met (T 899/13).
A ground for refusal can be addressed either by amending the claims and explaining why the ground for the decision no longer applies, or by giving arguments why the objection on which the ground was based is incorrect (see T 2022/16, T 305/11 and T 899/13).
In T 733/98, where an application was refused under Art. 97 EPC 1973 and R. 51(5) EPC 1973 (R. 71(4) EPC), on the grounds that the applicant neither communicated his approval of the text proposed for grant within the period according to R. 51(4) EPC 1973 nor proposed amendments within the meaning of R. 51(5) EPC 1973 within this period, the statement of the grounds of appeal was inadmissible, as it dealt only with the issues of the admissibility and allowability of new claims filed with the statement of grounds.
In the following cases, the appeal was deemed inadmissible: T 395/12 (the applicant's only statement that directly addressed the decision under appeal was that the examining division was "wrong", with no explanation why); T 1407/17 (the grounds of appeal gave no indication of why the ground for refusal under Art. 56 EPC was unfounded).