In T 1216/12, third-party observations had been filed together with an employee statement asserting that the test results cited in the notice of opposition were erroneous and so irrelevant. The board observed that, since these test results had been used in the contested decision as a basis for assessing whether the claimed subject-matter involved an inventive step, the statement raised serious doubts about that assessment. It therefore admitted the observations as prima facie highly relevant.
In T 1224/09 a third party had submitted documents D53 to D55 (Japanese patent applications) at the start of the appeal proceedings. The board considered documents D53 to D55 to be prima facie relevant, as they had led to the refusal of the corresponding application before the Japanese Patent Office. The board stated that third party observations could be submitted at any time as long as proceedings were pending. Admitting and considering such observations, however, was an issue to be decided by the competent department of the EPO. In the case of the boards of appeal, the principles set out in Art. 13 RPBA 2007 seemed to be a reasonable basis on which the discretion to admit the third party observations was to be exercised.
The observations under Art. 115 EPC were filed more than 1 1/2 years before the oral proceedings so that the parties and the board had sufficient time to consider the document. The board had also notified the parties that it considers document D 27 to be relevant. None of the parties had requested that the submission of the third party be disregarded. Thus, the board decided to admit the submission of the third party into the proceedings (T 458/07).