4.3.6 Submissions not admitted at first instance – error in the use of discretion – Article 12(6), first sentence, RPBA 2020
This section has been updated to reflect case law and legislative changes up to 31 December 2023. For the previous version of this section please refer to the "Case Law of the Boards of Appeal", 10th edition (PDF). |
Prima facie allowability is an established criterion as regards admittance of requests in first instance proceedings (T 1081/20).
In numerous decisions, the boards found no errors of discretion in opposition division decisions based on the criterion of a lack of prima facie allowability (or the criterion of a lack of prima facie suitability for overcoming the outstanding objections) (see e.g. T 430/20, T 1017/20, T 1037/20, T 1081/20). In many cases, the boards also used the expression of a lack of clear allowability (see e.g. T 337/20, T 1556/20, T 1009/21).
In T 1037/20 the opposition division, in not admitting auxiliary request 3, made an error in the use of its discretion because it used the prima facie criterion, but did not explain why the request, prima facie, was not allowable. The board underlined that merely stating that a request is prima facie not allowable was not sufficient.