3.2.5 Evidence rejected as prima facie irrelevant

In T 39/14, which concerned a method for improving foaming properties, comparative tests filed by the appellant (opponent) with its notice of appeal were considered prima facie irrelevant to inventive step and therefore not admitted (Art. 114(2) EPC and Art. 12(4) RPBA 2007). They could possibly have been used to support an objection under Art. 100(b) EPC but that ground for opposition had not been admitted either.

In T 973/10 the board decided not to admit late-filed evidence of prior use. The board held inter alia that the evidence was anyway not prima facie relevant. The photographs produced were not sufficiently compelling evidence because they did not enable it to reach any objective conclusion as to the nature and structural details of the device allegedly disclosed at a meeting (Art. 114(2) EPC in conjunction with Art. 12(4) RPBA 2007).

See also T 1680/15 on how the late filing of various means of evidence in the opponent's possession (including an offer of witnesses, affidavits, invoices) affected the board's decision on whether to consider them.

For information on the concepts and provisions that are now applicable, please see the chapters on late-filed evidence and on RPBA 2020.