4.5. Criteria for exercise of discretion

In T 1525/17 the opposition division had taken the view that the subject-matter of claim 1 as granted was inventive over E1 and E2 in combination with E3, E4, E5 or E6 but decided not to admit the late-filed citations E5 and E6 because considering them would make no difference to its decision. The board observed that a decision to disregard certain late-filed facts or evidence amounted to their non-admission: "not admitting" and "disregarding" facts and evidence not submitted in due time meant the same thing. The board observed that it was inherently contradictory to take late-filed documents as a basis for an in-depth examination of the patentability requirements, and so consider them as to their substance, yet at the same time declare them not admitted, as the opposition division had done in this case, having fully considered documents E5 and E6 in its thorough substantive assessment of inventive step. As a rule, that documents had been examined as to their substance meant that a board could fully review their examination on appeal or at least that it was barred from holding them inadmissible under Art. 12(4) RPBA 2007 on the basis that they had not been admitted by the department of first instance, when their purported non-admission had in fact been inherently contradictory and so amounted to an improper exercise of discretion (see T 2324/14 and T 2026/15).