1.2.4 Other criteria

In other decisions, the relevance of late-filed documents was no longer viewed as being the only decisive criterion for admitting them. Other criteria, such as how late the documents were and whether their submission constituted a procedural abuse or whether admitting the late-filed documents could lead to an excessive delay in the proceedings, were also held to be decisive. Late-filed facts, evidence and arguments from the appeal proceedings could also be excluded owing to the curtailment of the principle of examination by the EPO of its own motion (see T 534/89, OJ 1994, 464; T 17/91, T 951/91, OJ 1995, 202; T 1019/92, T 1182/01, T 927/04).

In T 188/05 the board did not share the appellant/opponent's view that it was obliged to admit relevant evidence irrespective of how late it had been filed, provided that it cast doubt on the patent's validity. The case law of the boards of appeal establishes quite clearly that the first instance and the boards of appeal have a discretion to admit late-filed submissions and that the exercise of this discretion depends on the facts of each case but pertinent matters may include the relevance of the new material, whether it could have been produced before and if so why it was not, whether other parties and/or the board itself are taken by surprise, and how easily they can and whether they have adequate time to deal with it.

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