As early as T 117/86 (OJ 1989, 401), it was pointed out that facts and evidence in support of an opposition which were presented after the nine-month period had expired were out of time and late, and might or might not be admitted into the proceedings as a matter of discretion under Art. 114(2) EPC 1973. Boards had to ensure that proceedings were conducted expeditiously, and other parties fairly treated. The parties should submit all the facts, evidence and arguments relevant to their case as early and completely as possible, particularly when such an evidence was already known to the party concerned (see T 101/87, T 237/89, T 951/91, OJ 1995, 202, T 34/01, T 1182/01, T 927/04, T 1029/05).
In exercising its discretion the board takes account of the circumstances of the specific case, in particular the interests of the parties and the procedural economy of the appeal proceedings, having in mind the purpose of these proceedings (T 123/08).
There are restrictions on the admission of new submissions because parties cannot be given complete freedom in their conduct of proceedings given, in particular, the need in inter partes (adversarial) procedures to act fairly towards the other party and, more generally, the requirements of due process (T 1685/07).
In T 1488/08 the patent had been opposed under Art. 100(a) and (c) EPC 1973. In their written statement setting out the grounds of appeal, however, the appellants had only invoked lack of inventive step. The board found that the new objections of added subjectmatter and lack of novelty had only been raised after the respondents had submitted their reply and were therefore late filed. The appellants had not cited any objective reasons to justify the filing of these objections at a later stage than the appeal. Their attempt to re-introduce them could therefore only be regarded as a change of position determined by procedural tactics ("salami" tactics). On that basis alone, the board considered, in view of procedural economy, that it should exercise its discretion not to admit the late filed objections.