T 0989/23 - Review of a (purported) decision to admit

Key points

•  Just when you thought the matter was settled - the Boards have no competence to set aside a decision of an OD to admit a submission - comes this decision.
• The Board, in the headnote:  "A board has the power to review an opposition division's procedural decision to consider late submissions filed in opposition proceedings. Otherwise, the parties' right to a judicial review of an essential part of the opposition division's decision would be denied. Moreover, on appeal, a board would be compelled to accept a legal and factual framework even if it is based on an erroneous exercise of discretion"'
• The Board, in the present case, 'unadmits' the auxiliary request that was - formally - admitted by the OD (see below), finds the higher-ranking request to be not allowable (not inventive, unclear), and revokes the patent.
• However, the case is special in that: "On the issue of the admittance of auxiliary request 17, the patent proprietor referred to the minutes of the oral proceedings before the opposition division and to the contested decision, and argued that the opposition division had admitted all of the auxiliary requests, including auxiliary request 17, into the opposition proceedings. Auxiliary request 17 had not been considered by the opposition division since the higher-ranking auxiliary request 3 had been found allowable."
• I doubt that AR-17 was actually admitted, in the applicable legal sense, if the OD did not arrive at it by finding the higher-ranking request AR-3 allowable. The case law about the non-reviewability of decisions to admit applies to matters that were admitted and considered on the merits by the OD.
• The Board examines whether to admit AR-17 in appeal (as if it were filed with the statement of grounds). The reasoning is fact-specific, but supported a decision to not admit the request ("the substantiation of patentability of the subject-matter of auxiliary request 17 in the patent proprietor's statement of grounds of appeal differed from the explanations given during the oral proceedings [before the Board] in support of both the prima facie allowability of auxiliary request 17 and the remittal of the case for further prosecution) 
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EPO 

The link to the decision can be found after the jump.

https://www.epo.org/en/boards-of-appeal/decisions/t230989eu1