5.1.7 Principles for the exercise of discretion by the opposition division
The case law of the boards of appeal has confirmed the following criteria (as set out in the EPC Guidelines E‑VI, 2.2.3 – April 2025 version) that the opposition division should take into account when properly exercising its discretion under Art. 114(2) EPC or R. 116(1) or (2) EPC: prima facie allowability, procedural expediency, abuse of procedure, and the question as to whether the opponents could be expected to familiarise themselves with the amendment in the time available (see e.g. T 491/09).
In T 500/15 the board noted it was undisputed that such a discretionary decision had to be taken by applying the criteria recognised in the practice of the EPO. In the case in hand, the board agreed with the additional criterion identified by the opposition division of "the complexity of the amendments", and noted that the applicability of the examined procedural criteria had to always depend on their actual substantive effect.
In T 2385/12 the board noted that instances where discretion may be exercised by a department of the EPO had not been formulated in a concrete manner since the particular way in which the discretion may be exercised was necessarily dependent on the specific circumstances of the case in hand.
In T 1930/14 the opposition division, having considered the timing of the filing of the auxiliary request (which could have been filed earlier), its complexity and its prima facie allowability, did not admit the auxiliary request into the proceedings. The board was satisfied that the opposition division had exercised its discretion according to the right principles and in applying these principles had not exercised its discretion in an unreasonable way.
In T 84/17 the board concluded that the opposition division had exercised its discretion in a reasonable way and had used the correct principles. The opposition division had correctly stressed that the auxiliary requests had been filed very late without appropriate justification. The underlying objections had been on file since the notice of opposition and their pertinence commented on in the annex to the summons. Moreover, the opposition division's decision not to admit the requests was not exclusively based on the unjustified lateness but also on the finding that the opponents could not be expected to deal with the specific restrictions of subject-matter introduced with these requests, i.e. the opposition division had also considered the substance of the amendments. In the board's opinion, if the arguments in the particular case showed that some criteria weighed so heavily that other criteria could not outweigh them, it was not necessary to discuss all criteria.
In T 1617/20 the board held that using the criterion of prima facie allowability under Art. 123(2) EPC, to object for the first time at oral proceedings to a feature of the late-filed claim request (auxiliary requests 2) that was already present in higher-ranking claim requests and had never been objected to before, not even when deciding on the allowability or admittance of those higher-ranking claim requests, went against the principles of fairness and good faith. The opposition division should have used the same criteria it had used when deciding on the admittance of auxiliary requests 1, which was also substantially identical to a previous request. Not doing so, and thus basing the decision as regards the two claim requests on different criteria, resulted in an inconsistent approach. The opposition division, had thus used the available criteria in an unreasonable way and its decision thus suffered from an error in the use of its discretion.
In T 1081/20 the board noted that the admittance of the auxiliary request in question was at the opposition division's discretion pursuant to Art. 123(1) EPC in conjunction with R. 79(1) EPC and/or R. 81(3) EPC. It stated that a board should overrule such a discretionary decision only if the wrong principles had been applied or if the decision had been taken in an unreasonable way. See also the settled jurisprudence in light of G 7/93 (OJ 1994, 775), in chapter IV.C.5.1.8 and chapter V.A.3.4.1.