T 1242/14 - Discussing vs relying on document

Key points

• In this opposition appeal, D9 was filed with the Statement of grounds. Yet it is not admitted under Art.12(4) RPBA, because in the Statement the content of D9 is merely discussed without connecting it to the impugned decision. 
• "the appellant did not seem to rely on D9 in its complete case to reason why it is requested that the decision under appeal should be reversed. [...] On page 11 of its statement of grounds and contrary to the appellant's own declared intention, the appellant simply discusses the general disclosure of D9, without submitting any reason as to why the opposition division should have admitted D9 or even why, taking into consideration D9, the subject-matter of claim 1 does not involve an inventive step. D9 is thus not admitted into the proceedings (Article 12(4) RPBA)."
• In this case, the publication keyword seems illustrative though it is not part of the decision: "Late-filed document - reliance on document in party's case (no)" 

EPO T 1242/14 -  link

4. Admittance of D9

4.1 Article 12(4) RPBA requires the Board to take into account everything presented by the parties under Article 12(1) RPBA if and to the extent that it relates to the case under appeal and meets the requirements in Article 12(2) RPBA. However, according to Article 12(4) RPBA, the Board has the discretionary power to hold inadmissible facts, evidence and requests that could have been presented or were not admitted in the first instance proceedings.

4.2 As the Board stated in its communication, the appellant did not seem to rely on D9 in its complete case to reason why it is requested that the decision under appeal should be reversed. The appellant did not submit any comments or counter-arguments in reply to this provisional opinion. The Board has therefore no reason to reach a different conclusion, and confirms its preliminary opinion herewith. On page 11 of its statement of grounds and contrary to the appellant's own declared intention, the appellant simply discusses the general disclosure of D9, without submitting any reason as to why the opposition division should have admitted D9 or even why, taking into consideration D9, the subject-matter of claim 1 does not involve an inventive step.

4.3 D9 is thus not admitted into the proceedings (Article 12(4) RPBA).