4.5.2 Review of discretionary decisions by the boards

The discretionary power conferred by Art. 114 EPC necessarily implies that the EPO department of first instance must have a certain degree of freedom in exercising its power. A board of appeal should only overrule the way in which a department of first instance has exercised its discretion when deciding on a particular case if it concludes that it has done so according to the wrong principles, or without taking into account the right principles, or in an unreasonable way, and has thus exceeded the proper limits of its discretion (T 640/91, OJ 1994, 918; G 7/93, OJ 1994, 775; see also chapter V.A.3.4). This rule also applies with respect to opposition division decisions on the admission (T 1209/05, T 1652/08, T 1852/11, T 2513/11) or non-admission (T 1485/08, T 1253/09, T 1568/12, T 1883/12, T 1271/13, T 1690/15, T 1711/16) of late-filed submissions. It is not the function of a board of appeal to review all the facts and circumstances of the case as if it were in the place of the department of first instance in order to decide whether or not it would have exercised such discretion in the same way (T 75/11; see however T 544/12, where the opposition division did not give sufficient reasons for its decision).

This discretionary power has to be exercised reasonably after hearing the parties, including in oral proceedings if requested (T 281/00).

In some decisions, however, the boards have taken the view that they could not hold inadmissible and hence disregard a party's submission in the appeal proceedings, if this submission had been admitted by the opposition division, as neither Art. 114(2) EPC nor Art. 12(4) and 13 RPBA 2007 provided a basis for disregarding them (see e.g. T 467/08, T 572/14, see also chapter V.A.3.4.4).

In T 2603/18 the board held that document D23, admitted by the opposition division, on which the opposition decision was based, had become part of this decision on which the appeal was based. For this reason alone, document D23 must be taken into account in the appeal proceedings. Otherwise, a full review of the contested decision would not be possible.

In T 2049/16 the board observed (with reference to T 617/16) that the EPC did not provide any explicit legal basis that would make it possible to retroactively exclude evidence that has been admitted into the proceedings and decided upon at first instance. However, according to the board, it could be argued that the opposition division's decision to admit document D20 was part of the decision under appeal and as such was part of the appeal under Art. 12(2) RPBA 2020 and open to review.