T 2449/12 vom 28.10.2014

Fresh ground of opposition (not admitted)
Late-filed documents (admitted)
Inventive step - (yes)

When neither the merit nor the admittance of a ground of opposition which was late-raised and withdrawn during the opposition proceedings have been addressed in the decision under appeal, this ground is considered a fresh ground of opposition which cannot be introduced into the appeal proceedings without the consent of the patent proprietor.
The fact that the opposition division did not raise this ground of opposition of its own motion does not imply that it took a decision - subject to review of the board of appeal - to disregard it, as it might have been the case if this late-filed ground had been maintained (see point 2 of the Reasons).