Under Art. 13(1) RPBA any amendment to a party's submissions after it has filed its statement of grounds of appeal or reply may be admitted and considered at the board's discretion. The discretion is exercised in view of inter alia the complexity of the new subject matter submitted, the current state of the proceedings and the need for procedural economy.
As early as T 117/86 (OJ 1989, 401), it was pointed out that facts and evidence in support of an opposition which were presented after the nine-month period had expired were out of time and late, and might or might not be admitted into the proceedings as a matter of discretion under Art. 114(2) EPC 1973. Boards had to ensure that proceedings were conducted expeditiously, and other parties fairly treated. The parties should submit all the facts, evidence and arguments relevant to their case as early and completely as possible, particularly when such an evidence was already known to the party concerned (see T 101/87, T 237/89, T 951/91, OJ 1995, 202, T 34/01, T 1182/01, T 927/04, T 1029/05).
There are restrictions on the admission of new submissions because parties cannot be given complete freedom in their conduct of proceedings given, in particular, the need in inter partes (adversarial) procedures to act fairly towards the other party and, more generally, the requirements of due process (T 1685/07).
In T 1488/08 the patent had been opposed under Art. 100(a) and (c) EPC 1973. In their written statement setting out the grounds of appeal, however, the appellants had only invoked lack of inventive step. The board found that the new objections of added subject‑matter and lack of novelty had only been raised after the respondents had submitted their reply and were therefore late filed. Their attempt to re-introduce them could therefore only be regarded as a change of position determined by procedural tactics ("salami" tactics). On that basis alone, the board considered, in view of procedural economy, that it should exercise its discretion not to admit the late filed objections.
Date retrieved: 30 December 2018