3.4. Third­party observations filed at a late procedural stage

When considering the possible circumstances in which an examining division may have good reason to exercise its discretion to allow belated amendments, it should be borne in mind that a request for amendment at that stage may arise as a result of a realisation by the applicant of the need for an amendment, as a result of a point raised by the examining division or as a result of consideration of observations made by a third party pursuant to Art. 115 EPC 1973. In any of these circumstances, the discretion to allow amendment should be exercised according to the same principles (G 7/93, OJ 1994, 775).

In T 301/95 of 28 March 2000, a third party had alleged public prior use (under Art. 115 EPC 1973) after expiry of the period for opposition, i.e. belatedly. Under Art. 114(2) EPC 1973, it was at the discretion of the opposition division and the board of appeal whether or not to consider the belated submissions, but in deciding whether to do so, the most important criterion was the relevance of the belatedly cited prior art. The observations were not considered.

A document submitted under Art. 115 EPC 1973 during opposition proceedings, but after the time limit for filing the notice of opposition had expired, was discussed in the appeal proceedings, but not taken into account as it was found not proven to be publicly available at the relevant time and thus did not form part of the state of the art (T 314/99).

In T 953/02 the respondent had challenged the submission under Art. 115 EPC 1973 because of a signature which was deficient, i.e. not that of a natural person. The submission by the third party was filed substantially less than one month before the oral proceedings. The board did not admit it into the proceedings. This also removed any need to consider the arguments set out in the respondent's letter or the literature enclosed.

The observations under Art. 115 EPC were filed more than 1 1/2 years before the oral proceedings so that the parties and the board had sufficient time to consider the document. In fact, appellant I had already reacted in the written proceedings to the submission of the third party by filing amended claims and a declaration. The board had also notified the parties that it considers document D 27 to be relevant. None of the parties had requested that the submission of the third party be disregarded. Thus, the board decided to admit the submission of the third party into the proceedings (T 458/07).

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