4.3.6 Submissions not admitted at first instance – error in the use of discretion – Article 12(6), first sentence, RPBA
Prima facie allowability is an established criterion as regards admittance of requests in first-instance proceedings (T 1081/20). For a more detailed outline of the case law on this criterion, see chapter IV.C.5.1.7b).
In numerous decisions, the boards found no errors of discretion in opposition division decisions based on the criterion of a lack of prima facie allowability (or the criterion of a lack of prima facie suitability for overcoming the outstanding objections) (see e.g. T 430/20, T 1017/20, T 1037/20, T 1081/20). In many cases, the boards also used the expression of a lack of clear allowability (see e.g. T 337/20, T 1556/20, T 1009/21).
In T 1037/20 the opposition division, in not admitting auxiliary request 3, made an error in the use of its discretion because it used the prima facie criterion, but did not explain why the request, prima facie, was not allowable.