According to the consistent case law of the boards of appeal, although Art. 114(2) EPC gives an opposition division discretion not to consider facts and evidence not submitted in due time, the division is obliged to give reasons for its decision; it is not enough merely to cite their late submission (T 705/90, T 214/01, T 1855/13). Even if submissions are late-filed, their admission remains a procedural aspect over which the opposition division can exercise discretion. As a consequence, the decision needs to show the reasoning why the discretion was exercised one way or the other (T 1855/13).

In T 2097/10, the board found that the brief statement of reasons given by the opposition division – to the effect that documents D18 and D19 were relevant and not especially voluminous – was sufficient. Moreover, it was not apparent from the minutes that the patentee's representative had been denied an opportunity to comment on those documents, or that he had asked for more time to prepare such comments but his request had been refused.

In T 544/12 the board pointed out that a bare assertion of a lack of prima facie relevance was not by itself sufficient reasoning.