e) New documents not prima facie relevant – not admitted 

As observed in T 731/16 (citing Case Law of the Boards of Appeal, 9th ed. 2019, V.A.4.13.2), it was the boards' established case law that, besides a reason objectively justifying an amendment to a case, a decisive criterion for admitting late-filed documents was their prima facie relevance. Such material needed to be prima facie highly relevant in the sense that it could reasonably be expected to change the outcome of the proceedings, i. e that it was highly likely to prejudice maintenance of the European patent. In the case in hand, citation D12 had only been filed in response to the board's communication under Art. 15(1) RPBA 2007. In the board's view, it was out of the question that it would have been self-evident for the skilled person to combine the teaching of D4, a citation already on file, with that of newly filed D12. It therefore held that D12 was not highly relevant prior art and refused to admit it.

In T 2796/17 prima facie relevance was one of several factors (besides the timing of submission and the complexity of the new facts) the board considered in exercising its discretion under Art. 13(1) RPBA 2007 in conjunction with Art. 25(1) RPBA 2020 and Art. 13 RPBA 2007 in conjunction with Art. 25(3) RPBA 2020. The board found that the new submission (an inventive-step objection to the subject-matter according to claim 1, based on a combination of two documents filed with the notice of opposition) was not prima facie relevant, because the appellant (opponent) had not substantiated why the skilled person starting from the asserted closest prior art would have consulted the second document (without hindsight) or how that document disclosed the features added to the new main request. Not only had the appellant, without providing any justification, raised the objection for the first time at the oral proceedings but the objection involved a complex new set of facts. The board therefore refused to admit it.

For further cases where (prima facie) relevance was considered but not acknowledged, see e.g. T 102/16 (concerning D26), T 1877/16 (concerning D20 and D21).