4.5.2 Review of discretionary decisions by the boards
In T 1852/11 the board observed that the framework of the EPC did not provide a legal basis for excluding, at the appeal stage, a prior art document which was correctly admitted into the first-instance proceedings. The board in T 617/16 held that this was particularly the case when the impugned decision was based on them (see e.g. T 1549/07, T 1652/08, T 26/13, T 1201/14); in view of the aim of the appeal proceedings to review the decision under appeal in a judicial manner according to Art. 12(2) RPBA, such submissions were automatically part of the appeal proceedings (see e.g. T 487/16, T 2603/18).
Other boards have not ruled out the possibility of a review altogether, but have limited it to cases of errors in exercising discretion or procedural errors (T 2603/18, T 2685/19; see T 1549/07, T 1652/08, T 2197/11, T 572/14).
For a more substantial review of the case law concerning the board of appeal’s review of first-instance discretionary decisions, see chapter V.A.3.4.