In several decisions, the boards have addressed the issue of their scope for reviewing decisions taken by departments of first instance in exercise of their discretion. Among the factors to be considered is whether or not the department of first instance exercised its discretion properly.

The issues associated with exercising discretion are addressed in a number of other chapters in the context of the various individual provisions conferring discretion: see chapters IV.B.2.6.1 on the examining divisions' discretion under R. 137(3) EPC; IV.C.4.5. on the opposition divisions' discretion to admit late-filed submissions; V.A.7.2. on discretion to remit; and V.A.4.3. on the boards' discretion to admit late-filed submissions.