c) Documents and evidence not admitted by the opposition division 

In T 305/07 the appellant filed the experimental evidence which had not been admitted by the opposition division with its statement of the grounds of appeal. The board first stated that the claims at issue differed from those dealt with by the opposition division and in relation to which it considered the experimental evidence as irrelevant. However, the board came to the conclusion that none of the experimental evidence submitted with the statement of the grounds of appeal was relevant to the present case and therefore decided not to admit the experimental evidence.

In T 795/14, the appellant had filed with its statement of grounds of appeal tests which the opposition division had regarded as inadmissible for prima facie lack of relevance. However, they related to the evaluation of inventive step, which had been the focus of the opposition division's decision; moreover, the appellant (patent proprietor) had filed five additional auxiliary requests and it could not be ruled out that they would become relevant to the evaluation of inventive step in one of those. The board saw no reason not to admit the tests.

The board in T 2102/08 considered that deciding under Art. 12(4) RPBA 2007 on whether to admit submissions already not admitted at first instance amounted to reviewing the discretionary decision taken there (here: by the opposition division). On this point, it cited G 7/93 (OJ 1994, 775), in which the Enlarged Board had held that a board should only overrule the way in which a department of first instance had exercised its discretion if the board concluded that it had done so in accordance with the wrong principles or in an unreasonable way. Another example of a decision applying the principles established in G 7/93 in this context is T 2182/17. On this point, see chapter V.A.3.4. "Review of first-instance discretionary decisions".

In T 971/11, however, the board did not fully agree with this finding. It held that a document which would have been admitted into appeal proceedings if it had been filed for the first time at the outset of those proceedings should not be held inadmissible for the sole reason that it had already been filed before the department of first instance (and not admitted).