T 1206/19 - (No) review of decision to admit

Key points

•  The OD decided to admit a prior art document. The patentee requests to Board to reverse this decision. The Board finds that the OD correctly admitted the document into the proceedings.
• "Thus, the board cannot see any reason to "unadmit" a document which had already been admitted by the first-instance department without the latter having committed any substantial procedural violation in that regard (which would normally lead to a direct remittal of the case). "
• The Board then adds that: "At any rate, as held in T 39/93 (cf. Reasons 3.1.1, second paragraph), no valid judgment on the merits of the first-instance's decision could be made if evidence that was admitted by the first-instance department would simply be "unadmitted" by a board (contrary to the conclusions drawn e.g. in T 960/15, Reasons 3 []).  
• The Board in more detail refers to: "contrary to the conclusions drawn e.g. in T 960/15, Reasons 3, applying the test proposed in an obiter dictum of G 7/93, Reasons 2.6, relating to the exercise of discretion under Rule 86(3) EPC 1973 (Rule 137(3) EPC"
• As a comment, the Board's remark regarding T 960/15 appears (somewhat) obiter because the Board reviewed the OD's decision to admit the document and found it to be fine.
• As a further comment, to cite the CLBA V.A.3.4.1.b.: "Although G 7/93 was concerned with a specific situation, namely an examining division's refusal to admit amendments after issuing a communication under R. 51(6) EPC 1973, the boards have applied the criteria established there to their review of other discretionary decisions of the departments of first instance (T 820/14, see also T 858/17). For instance, the same approach has been taken to reviewing opposition division decisions on the admission of late-filed submissions (T 1209/05, T 1652/08, T 902/09, T 1253/09, T 544/12, T 1882/13).”

EPO 

The link to the decision is provided after the jump, as well as (an extract of) the text of the decision.

https://www.epo.org/law-practice/case-law-appeals/recent/t191206eu1.html

2.5 Prior-art document D17 has been filed by the opponent with its letter dated 12 October 2018 in response to the patent proprietor's reply to the notice of opposition and an annex to the summons to oral proceedings issued on 17 May 2018. The proprietor argued that D17 should not be admitted into the proceedings, since D17 provided similar information as document D15 filed by the proprietor and that D17 was not prima facie relevant as it was not directed to a hearing aid.

The board holds that there were indeed good reasons to file document D17 after the opposition division did not share the opponent's line of arguments. As to the similarity to D15, it is noted that the title of D15 refers to a posteriori speech presence probability estimation whereas D17 has no such limitation. The board also agrees with the findings in point 2.3 of the appealed decision and concludes that the opposition division had exercised its discretion to admit D17 into the proceedings without having committed any procedural violation, let alone a substantial one. Thus, the board cannot see any reason to "unadmit" a document which had already been admitted by the first-instance department without the latter having committed any substantial procedural violation in that regard (which would normally lead to a direct remittal of the case). At any rate, as held in T 39/93 (cf. Reasons 3.1.1, second paragraph), no valid judgment on the merits of the first-instance's decision could be made if evidence that was admitted by the first-instance department would simply be "unadmitted" by a board (contrary to the conclusions drawn e.g. in T 960/15, Reasons 3, applying the test proposed in an obiter dictum of G 7/93, Reasons 2.6, relating to the exercise of discretion under Rule 86(3) EPC 1973 (Rule 137(3) EPC).