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Case Law of the Boards of Appeal

 
 
c)
Late submission of experimental data 

In some cases, experimental data submitted shortly before the oral proceedings before the boards of appeal was found to be late filed and so inadmissible under Art. 114(2) EPC 1973. The reason invoked was that the handling of such data was more cumbersome and time-consuming than that of scientific publications, since it usually called for counter-experiments (T 342/98, T 120/00, T 157/03, T 311/10). In T 760/05 the board confirmed that filing an experimental report shortly before the date indicated by the board as the ultimate date for filing submissions ran counter to the principle that sufficient time should remain for the adversary to study it and perform counter-experiments. Similarly, in T 569/02, the board held that comparative experiments normally required careful consideration by the other party, including discussions with technical experts, who could not be expected to be immediately available. It might also be necessary for the other party to repeat the tests or perform other tests themselves. The board did not consider that the relevance of the tests played a role, since even relevant evidence of this type should not be filed at such a late stage in the proceedings. The comparative tests filed one month before the oral proceedings were found inadmissible regardless of their possible relevance.

Moreover, if oral proceedings have been arranged in inter partes proceedings, experiment results must be submitted sufficiently well in advance for the other party to have the opportunity to perform counter-experiments (e.g. T 270/90, OJ 1993, 725; T 939/90, T 375/91, T 685/91, T 305/94). Very late submission of experiment results (seven weeks before the oral proceedings) is contrary to a fair and expedient procedure (T 375/91, T 1008/05). In T 832/08, the board found that, where comparative experiments were submitted, the other parties had to be afforded sufficient time, so as not to breach their right to equal treatment.

In T 356/94 the board pointed out that any late-filed facts or evidence could be admitted in the opposition proceedings in so far as such facts or evidence were subsequently discussed by the parties concerned in accordance with Art. 113(1) EPC 1973, which meant allowing the parties sufficient time, depending on the nature of the facts or evidence submitted, to provide explanations. Taking into consideration comparative tests presented on the same day as oral proceedings were held could constitute an infringement of the other party's right to be heard, since the latter had had no material opportunity to check them (see also T 481/00, T 567/02).

In T 673/07 the late filed test report was not admitted into the proceedings. The admission of the late filed test report would either be unduly disadvantageous for the respondents, if no possibility of verification were conceded, or would require an adjournment of the oral proceedings and unduly prolong the proceedings, if a possibility of verification were conceded.

In T 192/09 the late filing of the additional experimental report could not be seen as an abuse of procedure. The new results had been submitted one month before the oral proceedings, in accordance with the instructions of the board. This had provided the respondent with adequate time to examine the data, decide if counterexperiments were necessary and assess whether it was feasible to provide these within the available time. If the respondent had concluded that this was not possible, then it was within its rights to file a reasoned request for postponement of the oral proceedings.