T 0609/12 - More relevant is not relevant

Key points: 

• The OD had not admitted a late filed document, because it was not "it appeared not to be prima facie more relevant to inventive step than documents (1) and (2), which were already on file and were considered "pertinent starting points" for inventive step". 
• The Board overrules the OD. " Contrary to the opposition division's opinion, a newly filed document does not have to be more relevant than the closest prior art in order to become relevant to a ground for opposition under consideration." 

EPO T 0609/12 -  link

Reasons for the Decision

1. The appeal is admissible.

2. Admission of documents (11) and (26) to (31) into the appeal proceedings - Article 114(2) EPC and Article 12(4) RPBA

2.1 The opposition division did not admit document (11) into the proceedings because, in its opinion, it appeared not to be prima facie more relevant to inventive step than documents (1) and (2), which were already on file and were considered "pertinent starting points" (see point 2.2.3 of the decision).

Contrary to the opposition division's opinion, a newly filed document does not have to be more relevant than the closest prior art in order to become relevant to a ground for opposition under consideration. In the present case, document (11) was filed by the opponent to support its inventive step argument that, at the filing date, fluticasone propionate was the corticosteroid of choice for replacing triamcinolone acetonide in example III of document (1), which was considered to be the closest prior art (see letter of 8 August 2011, point 8.1.4). As document (11) discloses what could be seen as superior properties of fluticasone propionate compared to triamcinolone acetonide, it is prima facie highly relevant to the issue of obviousness. In addition, the document was filed in response to the opposition division's preliminary opinion, and the respondent had more than two months to react before oral proceedings. Hence, the board has concluded that the opposition division did not properly exercise its discretion with regard to document (11) and has decided to overturn its decision not to admit the document into the proceedings.