a) Appeal based on the same ground for opposition 

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.

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.

In T 611/90 (OJ 1993, 50) 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. See also T 801/00.

In T 2361/15 the appeal of the appellant was solely based on an alleged public prior use filed for the first time with its statement of grounds on the same ground for opposition. The board stated that bringing a fresh case in appeal does not automatically imply that the statement of grounds does not "indicate the reasons for setting aside the decision impugned". It is a sufficient condition that the statement of grounds of appeal enables the board to understand immediately why the decision is alleged to be incorrect and on what facts the appellant bases its arguments. The statement of grounds met this condition.

Similarly, in T 727/09 there was an entirely new set of facts, albeit based on the same ground for opposition. The board noted that if the statement of grounds of appeal is exclusively based on these new documents, there must be a direct and clear link between the contested decision and the grounds for appeal. In the case at issue, the factual basis was, however, entirely new. The appeal was rejected as inadmissible.