a) Principles 

It is established case law that if a discretionary decision of the examining division or the opposition division not to admit submissions is challenged on appeal, it is not the task of the board to review all the facts and circumstances as if it were in the place of the opposition division and to decide whether or not it would have exercised discretion in the same way. The board should overrule the way in which the first instance division exercised its discretion only if it concludes that the division did so according to the wrong principles or without taking into account the right principles, or that it exercised its discretion in an unreasonable way and thus exceeded the proper limit of its discretion (for recent decisions see e. g. T 222/16, T 879/18, T 1695/18, T 435/20, T 214/20, T 1017/20, T 1617/20, T 1004/21, T 1309/21; not to be conflated with the review of a fact-finding process in first instance, see T 1138/20. However, see also T 307/22, according to which substantive findings on which the discretionary decision is based are open to review, at least in certain cases (here in the case of validly claimed priority); see also chapter V.A.3.4.1c).

This established case law on limited review of first-instance discretionary decisions, which had been developed in view of decision G 7/93, has been codified in Art. 12(6), first sentence, RPBA 2020 (T 1617/20). See also T 214/20 and T 435/20 noting that Art. 12(6) RPBA 2020 reflects this case law by referring to “an error in the use of discretion”.

It is for the appellant to demonstrate that the opposition division erred in the exercise of its discretion (T 726/20). The same principle applies in ex parte appeal proceedings. In T 1421/20, for instance, auxiliary requests were filed in preparation for the oral proceedings before the examining division, which, exercising its discretion under R. 137(3) EPC, decided not to admit them into the proceedings as late filed and prima facie unclear. Since the appellant did not provide any arguments with respect to these requests on appeal, the board saw no reason to question the decision of the examining division and decided not to admit these requests into the appeal proceedings (Art. 12(6) RPBA 2020).

Case law handed down in application of Art. 12(6), first sentence, RPBA 2020 on whether there was an error in the exercise of discretion is summarised in the following sections. On the discretionary criteria to be applied by the first instance, see also chapter IV.B.2.4, for examination, and chapters IV.C.4.5 and IV.C.5.1.4, for opposition. On review of first instance discretionary decisions by the boards of appeal, see also chapters IV.C.4.5.2 and V.A.3.4.1).

If there was an error in the use of discretion (or it can no longer be determined whether any such error occurred), the proviso in Art. 12(6), first sentence, RPBA 2020 does not apply and the board exercises its own discretion (T 1657/20).

According to Art. 12(6), first sentence, RPBA 2020, there are two criteria which can justify the admittance of the request under this provision: an error (of the first-instance department) in the use of discretion or the circumstances of the appeal case (T 726/20).