4.5.3 Prima facie relevance

Abstract

In T 21/22 document D20 was filed by the appellant (opponent) on the day of the oral proceedings before the opposition division but was not admitted into the proceedings because of its late filing and the fact that it was not prima facie relevant for novelty and inventive step.

Although the respondent had initially endorsed the arguments of the opposition division, they stated during the oral proceedings before the board that they withdrew their objection to the admittance of D20 into the proceedings.

The board observed that the opposition division had in fact conducted a comprehensive examination of late-filed D20 in respect of novelty and inventive step prior to concluding that it should not be admitted on the basis of its late filing and the fact that it was not prima facie relevant. The opposition division had therefore not only carried out a mere prima facie assessment but had fully considered D20 and the objections based upon it. Thus, the board held that there was no discretion left for the opposition division not to admit D20 into the proceedings (cf. T 1525/17, T 847/20, T 2026/15, T 2324/14), since it was de facto fully considered (and therefore implicitly admitted) by the opposition division.