Abstract on Article 114(2) EPC for the decision T0842/24 of 21.05.2026

In T 842/24 the board found that there was no legal basis for reversing in appeal a decision by the opposition division to admit new evidence (D29) into the opposition proceedings and thus to retroactively reject in appeal specific facts which had been admitted into the opposition proceedings if that evidence formed the basis of the decision taken on substantive grounds. It noted that this reasoning was not in conflict with T 989/23 where the auxiliary request admitted at the opposition division's discretion did not form the basis for the decision to maintain the patent in amended form.

The board recalled that the jurisprudence of the boards of appeal regarding the review of the opposition division's discretionary power under Art. 114(2) EPC was based on a principle established in T 640/91 and G 7/93. However, it noted that this principle was established in the context of reviewing a decision not to admit (emphasis by the board) a requested amendment after issuance of a R. 51(6) EPC 1973 communication (G 7/93) or not inviting a party to file further observations before issuance of a decision to refuse the application (T 640/91), and that it was also applied when reviewing discretionary decisions not to take a party's means of defence into account, e.g. documents. The board was aware that in a few cases this principle had also been invoked in the context of reviewing the opposition division's discretionary decisions to admit (emphasis by the board) documentary evidence on which the reasons for the decisions were based. This had been mainly limited to cases of errors in exercising discretion or procedural errors (T 1209/05, T 1652/08, T 1852/11, T 2513/11). In other decisions it had been questioned whether submissions admitted and forming the basis for the contested decision (evidence, claim requests) could be at all excluded from the proceedings in appeal even if the opposition division had exceeded the proper limits of its discretion in admitting them. The board nevertheless noted that in none of these decisions were the circumstances of the case such as to justify reversal of the discretionary decision.

Given the procedural asymmetry between situations where evidence was admitted or not admitted, the board had strong reservations as to whether the principle established in T 640/91 and G 7/93 was also appropriate for reviewing the discretion exercised in a decision to admit evidence into the proceedings. It explained that, in the context of non-admittance, the only way to challenge a substantive decision that did not take a (non-admitted) means of defence into account was to contest the non-admittance thereof. A review by a board of the discretion exercised by the opposition division was also imperative, if it was submitted that the exercise of its discretionary power constituted a substantial procedural violation.

On the other hand, a review of a decision by the opposition division to admit evidence or a claims amendment into the proceedings was not a necessary means to safeguard a party's right for a proper defence. The board held that the admittance of new evidence, even if its filing was not justified, did not lead itself (emphasis by the board) to an unequal treatment of the parties and therefore a procedural violation. Rather it was the absence of a proper opportunity for the opposing party to respond to that new piece of evidence and submissions based thereupon, once it had been admitted, which constituted a breach of the right to be heard. Art. 113(1) EPC reflected the principle that for inter partes proceedings each party should have a proper opportunity to reply to the case presented by an opposing party (G 4/95). The board noted that T 776/17 also made such a distinction.

The board added that a decision by the opposition division on substantive issues, based on evidence which has been admitted into the proceedings, could still be challenged in substance, on the ground that this evidence lacks relevance or probative value. It did not find any reason why a decision to admit an auxiliary request or piece of evidence should be reviewed on appeal if a party requested it, in order to determine whether discretion was exercised appropriately. The board should instead just fully review the appealed decision in substance. In view of this the board considered that it could not be derived from G 7/93 that the criteria stated therein for overruling the way in which a department of first instance has exercised its discretion also applied to the case where evidence was admitted and the decision taken on substantive grounds was based thereon. The board thus concluded that under the present circumstances it was not empowered to review the way the opposition division used its discretion to admit D29 into the proceedings.