b)
Documents and evidence not admitted by the opposition division 

In T 229/08 the opposition division had disregarded evidence designated as M12 because it was late-filed and because prima facie availability to the public could not be established. The board considered that it was primarily charged with reviewing the opposition division's exercise of its discretion. The provision of Art. 12(4) RPBA 2007 related to evidence which not only was not admitted but which also "could have been presented" in first instance proceedings. It was therefore evident that in both cases the board would have equal power to hold late-filed evidence inadmissible, whereby the party filing the evidence during appeal would have to overcome the additional hurdle of satisfying the board that its action in first presenting it in the statement setting out the grounds of appeal did not amount to tactical abuse.

In T 305/07 the appellant filed the experimental evidence which had not been admitted by the opposition division with its statement of the grounds of appeal. The board stated that the claims at issue differed from those dealt with by the opposition division and in relation to which it considered the experimental evidence as irrelevant. The board came to the conclusion that none of the experimental evidence submitted with the statement of the grounds of appeal was relevant to the present case. Hence, the board decided not to admit the experimental evidence filed with the statement of the grounds of appeal.

In T 795/14, the appellant had filed with its statement of grounds of appeal tests which the opposition division had regarded as inadmissible for prima facie lack of relevance. However, they related to the evaluation of inventive step, which had been the focus of the opposition division's decision; moreover, the appellant had filed five additional auxiliary requests and it could not be ruled out that they would become relevant to the evaluation of inventive step in one of those. The board saw no reason not to admit the tests.

In T 971/11 the board held that 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), see on this point chapter V.A.3.5. "Review of first-instance discretionary decisions".

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