An appeal follows a similar procedure to an opposition.
In principle, the appeal is a review of the decision of first instance, but the Boards of Appeal have wide discretion to permit new citations, amendments, and arguments, so that sometimes an appeal involves very different issues to the opposition.
The Appeal Board is independent and generally has three members.
The appeal is terminated by a decision, which can be to:
- remit the case back to the Opposition Division (who are, however, bound by the Appeal Board decision as far as it goes);
- revoke the patent;
- uphold the patent; or
- uphold the patent in amended form.
The Board can also order an award of costs.
No further appeal is usually possible, but a sideways reference on an important or contentious point of law to the Enlarged Board of Appeal can be made by the Board (but not by the parties). Exceptionally, the parties may petition the Enlarged Board of Appeal to review the decision under very limited circumstances (for example, if a member of the Appeal Board was ineligible to hear the case, if a fundamental procedural defect occurred or if a criminal act may have had an impact on the decision).