3.4.3 The boards' own discretion
In the cases reported here, the boards decided not to admit facts, evidence and requests already not admitted at first instance.
In T 584/09 of 10 June 2013 date: 2013-06-10, the board found that the opposition division had given sufficient reasons for its exercise of discretion and applied the correct criteria. Citing T 640/91, it held that it was not for it to review whether, as the appellant had argued, the opposition division might have been mistaken as to the relevance of the documents in question. In T 1643/11 the board was not convinced that the opposition division had exercised its discretion in an unreasonable way or according to the wrong principles, nor did it consider that that exercise was based on a manifestly wrong technical assumption. For these reasons the board confirmed the division's decision not to admit D9 and D13 into the proceedings.
In T 182/12, the appellant had requested in its statement of grounds of appeal that its patent be maintained on the basis of a request identical to an auxiliary request that the opposition division had refused to admit. Its failure to file it earlier had been at least partly a procedural tactic and in any event not justified by an unexpected turn of events. The board therefore saw no reason to overrule the opposition division's exercise of discretion and concluded that, since it too could not admit the appellant's sole request, the appeal had to be dismissed.
In T 1882/13, the opposition division had refused to admit a document on the ground that it was irrelevant. Finding that to be the right criterion for deciding whether to admit late-filed documents in opposition proceedings and that the division had not applied it unreasonably or arbitrarily, the board upheld its decision.
In T 74/14 the board held that to successfully challenge the decision of an opposition division not to admit documents into the proceedings on the grounds of prima facie lack of relevance, it is not enough merely to argue that they should in fact be considered relevant or that they could be used in an inventive step attack. Rather, it would be necessary to demonstrate that these documents are so manifestly relevant, and that the failure to recognise this was such an egregious misjudgement on the part of the opposition division, that the decision not to admit them constituted an unreasonable exercise of the opposition division's discretion.
The board in T 1467/11 observed that Art. 12(4) RPBA 2007 left the boards room for finding in specific cases that the facts were such that requests the opposition division had rightly refused to admit could nonetheless be admitted on appeal. However, it understood the review criteria laid down by the Enlarged Board in G 7/93 to mean that, where the opposition division had properly exercised its discretion in deciding not to admit amendments to a case, this was liable to result in their non-admission on appeal too unless facts justifying treating them differently could be established.