According to the case law of the boards of appeal, Art. 114(2) EPC provides no legal basis for disregarding late-filed arguments. Art. 114(2) EPC refers to late-filed facts and evidence ("Tatsachen und Beweismittel" in German; "faits et preuves" in French), but not legal submissions and arguments (T 861/93, T 386/01). Late-filed arguments cannot therefore be disregarded on the grounds that they were submitted for the first time at the oral proceedings (T 92/92, T 704/06).
In T 92/92, the board held that the EPC in the English version made a clear distinction between "facts and evidence" on the one hand and "arguments" on the other in Art. 114(1) EPC 1973 and that Art. 114(2) EPC 1973 did not refer to arguments. Art. 114(2) EPC 1973 was to be interpreted such that the parties' right to argue their case was not unduly restricted.
The Enlarged Board of Appeal defined "new arguments" in opinion G 4/92 (OJ 1994, 149) not as new grounds or evidence, but as reasons based on the facts and evidence which have already been put forward (T 131/01, OJ 2003, 115). In T 604/01, facts in the legal sense are to be understood as the circumstances and incidents of a case, looked at apart from their legal bearing. In the case in question, the board decided that the appellant's submission in the oral proceedings should have been classified only as an argument. In T 926/07 the board stated that facts are claimed subject-matter which must, where applicable, be substantiated by evidence. Arguments, by contrast, are the expositions generated when the law is applied to facts and evidence filed on time. Arguments based on facts filed on time are therefore to be admitted at every stage of the opposition and opposition appeal proceedings.
According to T 1553/07 arguments also included statements intended to rebut facts which had already been put forward (including evidence). In oral proceedings before the opposition division, the patent proprietor explained why in its opinion the public prior use claimed by the opponent had not been established beyond all doubt by the evidence which had been submitted late. The board did not regard the disputing of the prior use claimed by the opponent as constituting the presentation of new facts. Instead, the statements in question constituted a presentation of arguments concerning facts which had already been put forward and evidence submitted with respect to them.
Taking a similar line in T 861/93, the board ruled that decisions referred to by a party in support of its arguments were never citations which, under Art. 114(2) EPC 1973, could be rejected as being late. Decisions to which a party referred in support of its arguments should be regarded as part of these arguments and should not be rejected as being filed late.