T 1081/20 - Discretion independent of Rule 116

Key points

• The OD did not admit an auxiliary request.
• "The admittance of this request was at the opposition division's discretion pursuant to Article 123(1) EPC in conjunction with Rules 79(1) and/or 81(3) EPC (rather than Rule 80 EPC; see T 256/19, Reasons 4.7 [blogpost]). This discretion exists independently of the provisions of Rule 116 EPC (see T 966/17, Catchword 3). A board should overrule such a discretionary decision only if the wrong principles were applied or if the decision was taken in an unreasonable way."
  
• T 0966/17 was discussed here. Headnote 3 of that decision reads: "If the patent proprietor reacts with new requests to a new line of attack by the opponents and a newly filed document in this respect, the decision on admission can take into account whether the requests prima facie appear allowable or whether they should be rejected anyway due to other objections that were in the procedure for some time (see reasons, point 2.4).".
• " In respect of auxiliary request X [filed as "auxiliary request 1a" during the oral proceedings before the opposition division], the opposition division assessed inter alia "prima facie allowability", which is an established criterion as regards admittance. As to the right to be heard, the appellant was additionally given the opportunity to refute the objections raised by the respondent under Articles 123(2) and 84 EPC (cf. minutes, page 5, paragraphs 35 and to 37). The board sees therefore no reason to overrule the opposition's discretionary decision."
• Note,  T 0754/16 held that: "Under Rule 116(2) EPC, requests filed after the final date set for making written submissions, can only then not be admitted if the patent proprietor had been notified of the grounds prejudicing the maintenance of the patent. " (which is possibly not the right interpretation Rule 116(2), see  T 1776/18). 

EPO 

The link to the decision is provided after the jump.

https://www.epo.org/law-practice/case-law-appeals/recent/t201081eu1.html