3. Extent of scrutiny

In T 156/84 (OJ 1988, 372), the board argued that Art. 114(2) EPC 1973 on belated submissions did not apply to facts presented in the observations which third parties could file under Art. 115(1) EPC 1973 on the patentability of the invention, as no deadline was prescribed for their filing. The board in T 951/91 (OJ 1995, 202) qualified the reasoning given in T 156/84. An interpretation of the wording of Art. 115 EPC 1973 in the light of its object and purpose made clear that it was intended exclusively to cut down, and not to extend, the rights of third parties, still less to extend their rights beyond the rights of parties to proceedings before the EPO. It followed that, if, as clearly provided by Art. 114(2) EPC, a party who was dilatory and introduced material late might have it disregarded in the exercise of the EPO's discretion, a fortiori the same sanction could be applied to a dilatory third party.

The Enlarged Board clarified the associated points of law in G 9/91 and G 10/91 (OJ 1993, 408 and 420).

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