G 7/93 - r.2.6 Review of decisions to hold inadmissible

Key points

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• "2.6. It may be added that if an Examining Division has exercised its discretion under Rule 86(3) EPC [1973] against an applicant in a particular case and the applicant files an appeal against the way in which such discretion was exercised, it is not the function of a Board of Appeal to review all the facts and circumstances of the case as if it were in the place of the first instance department, in order to decide whether or not it would have exercised such discretion in the same way as the first instance department. "
•  "If a first instance department is required under the EPC to exercise its discretion in certain circumstances, such a department should have a certain degree of freedom when exercising that discretion, without interference from the Boards of Appeal. In the circumstances of a case such as that before the referring Board, a Board of Appeal should only overrule the way in which a first instance department has exercised its discretion if it comes to the conclusion either that the first instance department in its decision has not exercised its discretion in accordance with the right principles [...], or that it has exercised its discretion in an unreasonable way, and has thus exceeded the proper limits of its discretion."
• The holding concerned a decision of an examining division to hold inadmissible amended claims filed late in the grant procedure. The holding of the  Enlarged Board has been extended to opposition proceedings and to other types of submissions (namely, evidence and allegations of facts) but not to decisions of opposition divisions to admit submissions.

EPO 

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

https://www.epo.org/en/boards-of-appeal/decisions/g930007ex1

2.6. It may be added that if an Examining Division has exercised its discretion under Rule 86(3) EPC against an applicant in a particular case and the applicant files an appeal against the way in which such discretion was exercised, it is not the function of a Board of Appeal to review all the facts and circumstances of the case as if it were in the place of the first instance department, in order to decide whether or not it would have exercised such discretion in the same way as the first instance department. If a first instance department is required under the EPC to exercise its discretion in certain circumstances, such a department should have a certain degree of freedom when exercising that discretion, without interference from the Boards of Appeal. In the circumstances of a case such as that before the referring Board, a Board of Appeal should only overrule the way in which a first instance department has exercised its discretion if it comes to the conclusion either that the first instance department in its decision has not exercised its discretion in accordance with the right principles as set out in paragraph 2.5 above, or that it has exercised its discretion in an unreasonable way, and has thus exceeded the proper limits of its discretion.