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Fresh grounds for opposition submitted in appeal proceedings may be considered only with the approval of the patentee (G 10/91, OJ 1993, 420). In T 1002/92 (OJ 1995, 605), however, the board focused on the issue of the late submission of facts and evidence to substantiate the original grounds for opposition cited in the proceedings before the opposition division. In interpreting Art. 114(2) EPC 1973 (unchanged), the board applied the principles laid down in G 10/91 and held that late-filed facts, evidence and related arguments should only exceptionally be admitted into the proceedings if, prima facie, there were clear reasons to suspect that such late-filed material would prejudice the maintenance of the European patent.
Where facts and evidence supporting the opposition are submitted at a late stage in the proceedings and another party incurs considerably higher costs as a result, a different apportionment of the costs may be ordered for reasons of equity (see T 10/82, OJ 1983, 407; T 117/86, OJ 1989, 401; T 101/87, T 326/87, OJ 1992, 522; T 416/87, OJ 1990, 415; T 323/89, OJ 1992, 169; T 596/89, T 622/89, T 503/90, T 611/90, OJ 1993, 50; T 755/90, T 110/91, T 161/91, T 705/92, T 867/92, OJ 1995, 126; T 719/93 and T 970/93). The relevant factor in deciding on the costs is whether or not there are cogent reasons justifying the late submission; it is regarded as irrelevant whether the material in question has any bearing on the decision on the merits. However, it should be pointed out that, in several cases, requests for apportionment of costs have been refused, despite an unjustified delay, because there was no proof that higher costs had been incurred (see, for example, T 297/86, T 212/88, OJ 1992, 28; T 443/90, T 582/90, T 267/92, T 306/93, T 486/94 and T 9/95, T 207/03).
According to board of appeal case law, if a party introduces important facts or evidence at a late stage of the proceedings, without cogent reasons for the delay, this may be taken into account in the apportionment of costs (see T 117/86, OJ 1989, 401; T 326/87, OJ 1992, 522; T 97/90, T 611/90, OJ 1993, 50; T 110/91, T 705/92, T 847/93, T 1016/93 and T 574/02). If the reasons for the late citing of a document do not point towards negligence or other circumstances that would amount to an abuse of procedure, there is no reason of equity which would justify an apportionment of costs in the other party's favour (T 1016/93).