1.1.1 Interpretation of Art. 114 EPC

Under Art. 114(1) EPC, the EPO is obliged to examine the facts of its own motion, and in doing so, it is not restricted to the facts, evidence and arguments provided by the parties and the relief sought. According to Art. 114(2) EPC, however, the EPO may disregard facts or evidence which are not submitted in due time by the parties concerned. Interpretation of Art. 114 EPC therefore requires an analysis of the inter-relationship between its paragraphs Art. 114(1) and (2). In T 122/84 (OJ 1987, 177) the board summarised the historical development of the principle of ex officio examination with regard to late submission on the basis of the "travaux préparatoires" to the EPC 1973. A solution it found compatible with this principle was to leave it to the discretion of the department concerned whether or not to examine facts or evidence not submitted in due time, rather than, as had also been considered, ruling out such examination altogether.

A rigid rule excluding all new evidence on appeal might lead to injustice and unfairness in some cases and would not be compatible with the principles of procedural law generally recognized in the Contracting States (J 5/11).

The discretionary power under Art. 114(2) EPC is clearly conferred on the EPO departments only to ensure that proceedings run smoothly and to forestall tactical abuse (T 273/84, OJ 1986, 346).

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