Once Out, Always Out

I have posted on a tendency to apply the discretionary power of the EPO Boards of Appeal to admit documents which had not been admitted by the Opposition procedure here. Other examples are  T1872/08, T1817/08  and T1485/08.

In brief, the Technical Board of Appeal argues in each of these decisions that it has no discretion on its own to admit documents which have not been admitted in the first instance for good reasons. Documents which have not been admitted in the first instance will not be admitted in the second instance either.

All these decisions refer to the decision T 640/91, Official Journal EPO 1994, 918 and terribly misunderstand this decision. The paragraph which is repeatedly cited relates to the question whether a refund of the appeal fees is justified because opposition division has violated the right to be heard by not admitting documents at a late stage and examines the way in which the first instance has exercised its discretion for this purpose.
A new decision in the same direction has been published today: T 1643/11. I really regret this development. The circumstances may be very different in the 2nd instance: Adjournment of the oral proceedings might have had to be necessary when the document was filed late in the Opposition Proceedings whereas the parties have plenty of time to study the documents when they are filed together with the appeal brief.

The approach taken by the TBA encourages parties to not even try filing documents at a late stage of the 1st instance but rather wait for the appeal in order not to produce evidence that the document "could have been filed in the 1st instance", which, according to the current attitude of the TBA, amounts to a death sentence of the evidence. This is clearly not beneficial for the procedural economy.