5.13.2 Relevance

According to the case law of the boards of appeal a criterion to be taken into account is whether a late-filed document is prima facie highly relevant and whether there is proper justification for its late filing to forestall tactical abuse. Such material should be prima facie highly relevant in the sense that it can reasonably be expected to change the eventual result and is thus highly likely to prejudice the maintenance of the European patent (see T 1002/92, OJ 1995, 605; T 212/91; T 931/06; T 501/09; T 1306/09; T 2542/10; T 54/16 and T 1680/15). On the requirement of prima facie relevance, see also chapter IV.C.4.5.3.

In T 1002/92, the board stated that the criteria governing the admission of late-filed facts, evidence and arguments are more restrictive and stringent in proceedings before the boards of appeal than in opposition proceedings at first instance. In contrast to the first-instance proceedings, the appeal procedure is a judicial procedure and therefore "less investigative". Therefore, as regards proceedings before the boards of appeal, new facts, evidence and related arguments which go beyond the "indication of the facts, evidence and arguments" presented in the notice of opposition pursuant to R. 55(c) EPC 1973 in support of the grounds of opposition on which the opposition is based should only very exceptionally be admitted into the proceedings in the appropriate exercise of the board's discretion and if such new material was prima facie highly relevant.

In R 6/17 the Enlarged Board noted that the prima facie relevance of a document is not listed explicitly in either Art. 13(1) RPBA 2007 or Art. 13(3) RPBA 2007. However, the list of criteria in Art. 13(1) RPBA 2007 is non-exclusive, and the criterion of prima facie relevance has been applied by some boards of appeal as one criterion amongst others. The prima facie relevance is certainly neither the most relevant nor does it stand alone, i.e. without interdependence on other criteria. The interest in procedural expediency and procedural economy is also expressed in the common approach not to admit late documents which, prima facie, are no more relevant than what is already on file.

In T 2054/11 the board pointed out that, once oral proceedings on appeal had been arranged, and especially just before or during those proceedings, whether or not late-filed amendments to a party's case could be considered no longer depended in practice on whether they were relevant (see Art. 13(3) RPBA 2007). See also T 552/18.

In T 662/14 the board considered that only in exceptional cases was a document's allegedly high relevance a factor which justified the admission of new evidence and related arguments in appeal proceedings.

In T 2576/12 the board pointed out that, when exercising its discretion under Art. 12(4) RPBA 2007, it could make admitting prior art filed for the first time with the grounds for appeal dependent on whether it was prima facie (highly) relevant but that it did not have to, because otherwise there would be nothing to stop an opponent from always withholding (highly) relevant prior art until filing its grounds for appeal (see also T 724/08).

In T 367/15 the board found that not admitting a highly relevant document liable to be prejudicial to the contested patent's validity could lead to the unsatisfactory result that a patent was maintained that would have been revoked if the document had been considered. The board therefore had to strike a balance between two demands in the public interest, namely ensuring procedural fairness and preventing unjustified monopolies.

In T 887/11 the board admitted the (new) evidence as well as the offered witness testimony submitted with the appeal grounds into the proceedings because of their high relevance.

Examples of other decisions in which (prima facie) highly relevant documents were admitted are T 182/09, T 1404/10, T 605/11, T 1830/13, T 340/12, T 931/06, T 1105/04 (both parties considered the document to be the closest prior art).

In T 609/99 the board stated that despite the proprietor's objection to the admission of evidence which had been disregarded in the opposition procedure pursuant to Art. 114(2) EPC 1973, the board might, in certain circumstances, take account of this evidence without any implication that it was prima facie highly relevant. This exercise of discretion was not inconsistent with the criteria set out in T 1002/92 (OJ 1995, 605). In the circumstances of the case at issue the board's admission of evidence had not extended the legal and factual framework.