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). |
In T 847/20 auxiliary requests 3 and 4, filed with the statement of grounds of appeal, corresponded to auxiliary requests filed during the oral proceedings before the opposition division. Those requests had not been admitted into the opposition proceedings in view of their late filing and the fact that they did not comply with Art. 123(2) EPC. However, the board noted that the opposition division had not carried out a prima facie assessment but had fully considered the requests before concluding that they could not be admitted. The board considered that, by doing so, the opposition division had implicitly admitted the requests. Consequently, the board took the view that the opposition division had wrongly exercised its discretion because, having implicitly admitted the requests, there was no discretion left not to admit them (T 2026/15, T 2324/14).