In the cases reported here, the boards admitted on appeal facts, evidence and requests refused at first instance, some of them pointing out that they have their own discretion to do so and are generally not bound in this by how the department of first instance exercised its discretion (see, in particular, T 820/14 and, similarly, T 2219/10, T 1811/13, T 795/14, T 1817/14, T 291/15, T 575/15).
In T 971/11 the opponent (appellant) filed document B1 two days before the oral proceedings before the opposition division, which did not admit it into the proceedings. The board stated that the opposition division had based its discretionary decision on the principles established by the jurisprudence and had not acted in an unreasonable way. Together with its statement of grounds of appeal, the appellant re-submitted document B1. The board considered whether it had discretion to admit a document which was not admitted in the first-instance proceedings. According to Art. 12(4) RPBA 2007 the non-admission of a document which was not admitted in the first-instance proceedings into the appeal proceedings is at the discretion of the board. The board referred to the established case law, according to which a filing made with the statement of grounds of appeal should not be considered inadmissible if it is an appropriate and immediate reaction to developments in the previous proceedings. The board has to exercise its discretion under Art. 12(4) RPBA 2007 independently, giving due consideration to the appellant's additional submissions. In the judgement of the board, a document which would have been admitted into appeal proceedings if it had been filed for the first time at the outset of those proceedings should not, however, be held inadmissible for the sole reason that it was already filed before the department of first instance (and not admitted). To impose such a limitation on the discretion conferred by Art. 12(4) RPBA 2007 could even have the undesirable effect of encouraging a party to hold back a document during the opposition proceedings, only to present it at the appeal stage. The board admitted the document (see also T 876/05 and T 1403/13).
In T 2219/10 the board stated that although T 971/11 concerned the admission of documents in opposition, similar considerations applied with respect to the question of whether sets of claims filed with the grounds of appeal which had not been admitted in the first-instance proceedings should be admitted into the appeal proceedings. This is especially the case in ex-parte proceedings, in which issues of equal treatment of adverse parties do not arise. In the case in hand, there was no need to examine whether the examining division had correctly exercised its discretion in not admitting the auxiliary request filed at a late stage of the first instance proceedings, since in the exercise of its own discretion under Art. 12(4) RPBA 2007 the board admitted all the appellant's requests, including the main request, into the proceedings.
In T 1811/13 the board stated that the fact that the opposition division had not admitted documents HL13 and its translations did not preclude the board from admitting them if it considered them to be relevant (see T 971/11). This was not to be understood to mean that the opposition division had necessarily exercised its discretion incorrectly; the procedural situation simply was not the same any more. In the case in hand, the board found document HL13 to be relevant because it disclosed a feature that was critical for the assessment of inventive step.
In T 291/15 the board stated that the fact that the opposition division did not admit a late-filed document and did not exceed the proper limits of its discretion by not admitting it did not, in principle, prevent the board from admitting the document pursuant to Art. 12(4) RPBA 2007, in particular if it considered it to be prima facie relevant and taking into account additional facts and different circumstances (T 971/11, T 1811/13).
In line with T 971/11 and T 2219/10 the board exercised its discretion in T 945/12 with regard to auxiliary request I in light of the new circumstances and submissions, while taking into account the reasoning given by the opposition division for not admitting the very similar request in the first instance proceedings. The board noted that most of the reasons invoked by the opposition division no longer applied. Since auxiliary request I was submitted with the grounds of appeal, both the board and the opponent had time to examine the request. The board therefore decided to admit the request into the appeal proceedings.
In T 575/15 the board was of the opinion that it had the discretion to admit auxiliary requests 3 and 4, which had not been admitted by the examining division. Since at least some of the fundamental objections against the higher-ranking requests applied to these dependent claims as well, the board saw no reason not to admit them and hence took them into account.