T 341/15 - Late documents and late requests in first and second instance
In the present case, the Opposition Division admitted into the proceedings late-filed documents D9 and D14 and held that claim 1 of the then main request (patent as granted) and of the then first to sixth auxiliary requests did not involve inventive step pursuant to Article 56 EPC starting from D9 as closest prior art in combination with the teaching of D14. The appellant (proprietor) holds the view that they should not have been admitted into the proceedings similarly to other documents which had not been admitted by the Opposition Division. At the oral proceedings before the Board the appellant further added that D9 only concerns the preamble of claim 1 of the main request so that it would not be relevant to the invention. The Board discussed that, according to the established case law a Board of appeal should only overrule the way in which a department of first instance has exercised its discretion if it concludes that it has done so according to the wrong principles, or without taking into account the right principles, or in an unreasonable way, and has thus exceeded the proper limits of its discretion. When considering their admission into the proceedings, the Opposition Division applied the correct criterion of prima facie relevance. In this respect the Board follows the respondent's (opponent's) view that there is no legal basis or available case law according to which some circumstances would justify that only novelty, i.e. not inventive step, should be considered for the criterion of prima facie relevance.