3.5.4 Submissions admitted at first instance are part of the appeal proceedings

In T 467/08, the board refused the request to disregard on appeal comparative test results submitted in the opposition proceedings, on the basis that neither the EPC itself nor the RPBA provided for such a decision. The boards merely had competence to review a decision taken by the opposition division on whether or not to admit late-filed submissions, documents and requests filed in those earlier proceedings, or to decide themselves whether or not to admit submissions, documents and requests filed on appeal.

In T 572/14 the board held that the opposition division had considered the question of prima facie relevance of the document (21) and had come to the conclusion that this criterion was fulfilled. The board noted that it can hold inadmissible and hence disregard a party's submission in the appeal proceedings only on the basis of Art. 114(2) EPC and Art. 12(4) and 13 RPBA 2007. However, since document (21) was admitted by the opposition division and therefore became part of the opposition proceedings, it could not be excluded from the appeal proceedings pursuant to Art. 12(4) RPBA 2007 (see also T 467/08).

In T 1227/14, the board observed that the boards did not have the power to disregard on appeal submissions admitted by the opposition division in exercise of its discretion. The EPC did not provide a legal basis for excluding, in appeal proceedings, documents which were correctly admitted into the first-instance proceedings, in particular when the impugned decision was based on them (T 1852/11, T 1201/14).

In T 1652/08, the appellant argued that the late-filed documents, which the opposition division had – wrongly in its view – admitted, were no more relevant than those previously filed. The board, however, held that, in establishing whether a document was prima facie relevant, the decisive factor was not whether it was even more relevant than a previously filed document, but rather whether it was prima facie relevant for the outcome of the case. Where documents had been properly admitted in the first-instance proceedings and the contested decision was based on them, they had to be admitted on appeal too (see also T 1568/12).

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