Expert evidence tends to assist the boards in matters which lie outside their own expertise. However, the opinion of a former board member submitted as expert evidence on the application of Article 76 EPC to the facts of the case cannot add any evidential value to the party's submissions. Indeed, if a Board were swayed on such a matter by the fact that submissions had been made by a former board member, however eminent that person might be, it would attach undue weight to the individual making the argument rather than focus on the argument itself (see point 1.2.3).

The appellant-patent proprietor filed auxiliary request 19 after the Chairman had announced the results of the Board's deliberation on the main request and auxiliary requests 1 to 18, and filed auxiliary request 20 after the Chairman had announced the result of the Board's deliberation on auxiliary request 19. By its behaviour, the appellant-patent proprietor is, as a matter of fact, adjusting its strategy to the results of the Board's deliberation, which puts the appellant-opponent in a position where it is difficult to react. In deciding on the admission of such late-filed requests, respect for the principle of fairness of the procedure might make it immediately apparent that these requests should not be admitted, even without also considering specific criteria for the exercise of the Board's discretion such as prima facie allowability (see points 1.3.5 and 1.3.6).