In T 1477/15 the board stated that it is generally accepted that in appeal proceedings the principle of party disposition applies (see e.g. R 13/13), meaning that parties can put forward, withhold or withdraw their requests as they see fit. In other words, if a patent proprietor withdraws or no longer agrees to a text (two auxiliary requests, in this case), this principle prevents the board of appeal from deciding on these issues.

In T 911/06 the board stated that applying the general principles of court procedure to the order of the requests of the appellant proprietor might be inconsistent with the purpose of the appeal procedure inter partes as expressed in the decision G 9/91 (OJ 1993, 408). In the board's opinion, examining new requests in the appeal, when the appellant proprietor had also requested examination of the correctness of the first instance decision as a lower ranking request, would effectively reduce the appeal procedure to a simple continuation of the first instance proceedings, although it was apparent from the general logic of the EPC, that the appeal proceedings were wholly separate and independent from the proceedings at first instance. The board noted that it had been established in several decisions of the boards that in the case of main and auxiliary requests from the applicant or proprietor in first instance examination and opposition proceedings, the EPO was bound to the order of these requests. However, this principle did not necessarily apply to second instance proceedings before the boards of appeal. In view of the foregoing, the board considered that it was in line with the purpose of the appeal to examine first whether the department of first instance had correctly assessed the substance of the requests presented to it. Thus, in the case at issue, the correctness of the decision refusing the maintenance of the patent as granted had to be examined first, before examining the new amended claims. See also R 8/16 where the Enlarged Board held that the principle of party disposition expressed in Art. 113(2) EPC did not extend so as to permit a party to dictate how and in which order a deciding body of the EPO may examine the subject-matter before it.

On principles established by case law with regard to the order of requests, see also chapter III.I.2.