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In J 5/94 it was decided that the grounds on which a request for re-establishment of rights was based could be amplified, provided this completed the submission that had been filed in due time and thus did not alter the basis on which the original request for re-establishment had been filed.
In T 324/90 (OJ 1993, 33) the board held that evidence proving the facts set out in the application could be filed after expiry of the two-month time limit laid down in Art. 122(2) EPC 1973. Only the grounds and a statement of the facts had to be filed within the two-month period. Likewise in T 261/07 the board allowed the patentee, who had given an account of all the relevant facts to the best of its knowledge on 2 April 2007, to adduce further clarifying evidence supporting the case on 31 May and 24 August 2007.
In J 18/98 the examining division had refused the applicant's application for restitutio in integrum. An appeal was filed against that decision. From the established case law on Art. 122(3) EPC 1973 the board concluded that facts submitted only with the statement of grounds of appeal could not be taken into account, since the function of appeal proceedings was only to give a judicial decision upon the correctness of an earlier decision of the department of first instance (T 34/90, OJ 1992, 454). On the basis of the submission to be taken into account, the board decided that the applicant had not complied with his burden of allegation and proof. The vague statement that the assistant had been carefully trained and, during random checks, had proved to be knowledgeable and careful was not adequate, since no further details had been given of the selection conditions, of the training and checking, or of the office's mode of operation.
In T 257/07 the board refused re-establishment of rights into the time limit for filing the notice of appeal because the request for restitutio in integrum as filed within the two months stipulated in Art. 122 (2) EPC failed to show that all due care had been taken. It was only one year after the removal of the cause for non-compliance that the appellant qualified certain statements previously made and added new facts that previously went unmentioned, in particular regarding the system for managing files and deadlines. It transpired from these subsequent submissions that the original request for re-establishment of rights gave only an incomplete picture of reasons for non-compliance, of how appeals were filed, and of safeguards against errors made. The Board considered that this omission could not be subsequently remedied by the addition of further facts, as case law would only allow the appellant to "submit further evidence which clarifies the facts which were set out in the application for re-establishment" (J 2/86, OJ 1987, 362; T 261/07).