Under R. 71a EPC 1973 (R. 116 EPC, unchanged) new facts and evidence do not need to be considered after the time stated in the summons, unless they are admitted on the grounds that the subject of the proceedings has changed. R. 71a EPC 1973, and Art. 114(2) EPC 1973 on which it is based, refer to late-filed facts and evidence but not to new arguments, which can be made at any stage in the proceedings (T 131/01, OJ 2003, 115; T 926/07). In accordance with the jurisprudence, therefore, new arguments in support of facts already adduced have to be considered in accordance with R. 71a(1) EPC 1973, even if presented after the date specified in the summons, and equally cannot be rejected by citing Art. 114(2) EPC 1973 (T 1553/07).
In T 131/01 (OJ 2003, 115) the board had to point out that it followed that new relevant arguments in respect of previously submitted facts presented after the time indicated in the summons had to be taken into account by the opposition division under R. 71a EPC 1973.