According to previous decisions two different possibilities were available for the complainant in an appeal before the European Patent Office (EPO) in order to achieve an amendment of a decision:

• trying to convince the Board of Appeal that the contested decision is incorrect, or
  
  
• alteration of the legal or actual basis of the contested decision by submitting new or amended documents, for example amended claims.

According to the decision T 2532/11 the complainant is no longer legitimated to base its appeal simply on alternative b). In the present case the opposition division had revoked the patent, because the subject matter was not regarded as novel on the basis of two requests (further requests were not approved due to formal reasons). With its appeal substantiation the complainant submitted a new main request and further auxiliary requests and substantiated in detail for what reason the limited claims were new and inventive compared to the state of the art. It was neither in the main request nor in the auxiliary requests referred to the decision of the opposition division in the previous instance. Thereupon the opponent and the respondent requested not to approve the new applications and questioned the admissibility of the appeal. In the decision T 2532/11 the Board of Appeal acted for the respondent, rejected the appeal as inadmissible and therewith adjudicated against the previous decisions in such matters.

In the so far single comparable case T 1102/11 of February 14, 2014, in which the decision T 2532/11 is mentioned on the cover sheet as „referred decisions”, the same Board with different members has regarded the appeal as allowable with a reference to T 39/05, however without dealing with T 2532/11 in detail.

In which direction the decision-making practice before the EPO is heading in such matters remains to be seen. In order to reduce the risk that an appeal is rejected as inadmissible, it is in any case advisable to always be responsive to the decision of the previous instance and attempting to convince the Board of Appeal that the corresponding decision is incorrect.