3.4. Review of first-instance discretionary decisions

Catchword:

Prima facie allowability under Article 123(2) EPC of a late filed amended claim request may be a valid criterion to be used by the opposition division when deciding on the admittance of this claim request. However, using this criterion, to object for the first time at oral proceedings to a feature of the late-filed claim request that was already present in higher ranking claim requests and had never been objected to before, not even when deciding on the allowability or admittance of those higher-ranking claim requests, goes against the principles of fairness and good faith (see point 2.6.11 of the reasons).

Catchword:
The Boards of Appeal may review discretionary decisions. There are, however, limits on the extent of review that reflect the discretion accorded to the deciding body. In the present case, the Opposition Division decided to consider document D8 and the review of this decision is a primary object of the appeal proceedings (Article 12(2) RPBA 2020) - see Reasons 1 - 9.