3.2. Introducing a fresh ground for opposition in opposition proceedings

An opposition division may, in application of Art. 114(1) EPC, of its own motion raise a ground for opposition not covered by the statement pursuant to R. 76(2)(c) EPC but referred to by a third party under Art. 115 EPC after the expiry of the time limit laid down in Art. 99(1) EPC. The Enlarged Board emphasised that the consideration of grounds not properly covered by the statement pursuant to R. 55(c) EPC 1973 (now R. 76(2)(c) EPC) should only take place before the opposition division in cases where, prima facie, there were clear reasons to believe that such grounds were relevant and would in whole or in part prejudice the maintenance of the patent. The possibility under Art. 114(2) EPC 1973 of disregarding facts and evidence in support of fresh grounds not submitted in due time should, of course, also be kept in mind (G 9/91, OJ 1993, 408, T 356/94, T 1053/05).

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