2.6.4 New case raised
The extent to which new submissions filed with the statement of grounds of appeal are taken into consideration is at the board's discretion as per Art. 12(4) RPBA 2020; for more detail on this point, see chapter V.A.3.2.2 "Complete case on appeal" and chapter V.A.4 "New submissions on appeal – case law on RPBA 2020".
In T 278/15, the board held that, having found an appeal to be admissible, it could not deem it inadmissible retroactively even if it later exercised its discretion not to admit an amended request into the proceedings. The admissibility of the appeal had to be examined on the basis of all the documents filed by the appellant within the deadline, even if these documents were subsequently excluded from the proceedings (see explanatory remarks to Art. 12(4) RPBA 2020, Supplementary publication 2, OJ 2020).
In T 2270/17, the board held that when deciding whether the appeal had been adequately reasoned, it was immaterial that D7 and D8 were new documents that had not been part of the opposition proceedings. Specifically, a statement of grounds of appeal could be admissible even if the facts and evidence liable to deprive the contested decision of its basis which it cited in support of an existing ground for opposition were new. The board's later, discretionary decision on whether to exclude any such new submissions from the appeal proceedings as per Art. 12(4) RPBA 2007 had no retroactive effect on the admissibility of the appeal.
In T 501/09 the board was aware that other boards of appeal had found that an appeal based entirely on new evidence may be admissible when the grounds for opposition have remained the same (see T 1557/05). However, this finding does not necessarily mean that the new items of evidence only filed during the appeal procedure may not be disregarded by the board (see e.g. T 389/95). If this new evidence is subsequently not admitted in the appeal proceedings this has the consequence that the appellant's case on appeal is not substantiated.