h) Admittance justified by the circumstances of the appeal case 

According to Art. 12(6), first sentence, RPBA there are two criteria which can justify the admittance of the request under this provision: an error in the use of discretion or the circumstances of the appeal case (T 726/20). Similarly T 1017/20. In the following cases, the boards, after finding that the non-admittance by the opposition division was not affected by an error, examined the question of whether admittance was justified by the circumstances of the appeal case.

In T 1017/20 compliance of a previous main request with the requirements of Art. 100b) EPC had been discussed at the oral proceedings before the opposition division and denied by the opposition division and was the reason for the submission of the amended main request. The board held that, in this particular situation, the prima facie compliance of the main request on appeal with the provisions of Art. 100(b) EPC formed part of the circumstances of the appeal case that were to be considered for the purpose of applying Art. 12(6) RPBA. However, since the main request prima facie did not solve the issue discussed at the oral proceedings, it was not admitted.

In T 1589/21 the appellant (patent proprietor), in response to the preliminary opinion of the board, resubmitted requests that had not been admitted into the opposition proceedings. The appellant argued that since the board had a different opinion on added subject-matter from the opposition division, the appellant's situation had changed. However, the board did not find this argument persuasive, as in its preliminary opinion, it had merely agreed with the respondent on this issue. The respondent had raised this objection of added matter already in the notice of opposition and again in the reply to the appeal.

In T 500/20 the board considered that there was no apparent error in the opposition division’s exercise of discretion regarding the admittance of E18, which was resubmitted on appeal. The board also observed that the subject-matter of the case, i.e. the claims at issue, was unchanged and concluded in its preliminary opinion that there appeared to be no new circumstances of the case that could justify the admittance of the new document in question at this stage. Since this conclusion was not challenged, E18 was not admitted into the appeal proceedings.

In T 1556/20 the board, having found that it could not recognise any error by the opposition division in the use of its discretion not to admit late-filed requests, noted that the circumstances of the appeal case were not different from those existing before the opposition division since the disputed issues remained the same. The board therefore decided not to admit these requests into the proceedings under Art. 12(6) RPBA.

In T 290/20 document D6 had been filed by the opponent after the date set by the opposition division under R. 116 EPC and less than four weeks before the oral proceedings, according to the opponent in reaction to the proprietor’s late filing of auxiliary request 4 (single independent claim directed to a process). The opposition division had not admitted D6 as it considered that this document could have been filed earlier and that it was not more relevant than other documents already in the proceedings. The board however admitted D6 into the proceedings. The filing of auxiliary request 4 shortly before the date of the oral proceedings before the opposition division, and the arguments brought forward by the proprietor in support of inventive step of claim 1 of that request, represented a change in the course of the opposition proceedings, which justified the filing of a new document as a reaction by the opponent.