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Case Law of the Boards of Appeal

 
 
5.3.5 Examination of fresh facts and evidence

In T 1002/92 (OJ 1995, 605) the board stated that, when considering the admissibility of a further ground for opposition not covered by the notice of opposition after expiry of the opposition period, both before an opposition division and before a board of appeal, the Enlarged Board was necessarily implicitly considering the admissibility of such a fresh ground in combination with at least an indication of the fresh facts and evidence intended to support it. The mere stating of a fresh ground without any indication of the fresh facts, evidence and argument supporting it would obviously be inadmissible, either within or after expiry of the opposition period. It would be illogical to have one criterion for the admissibility of late-filed new facts, evidence and arguments in combination with a fresh ground, and a different criterion for judging the admissibility of late-filed new facts, evidence and arguments in support of a ground for opposition already covered by the opposition statement. Hence, in the board's view, it followed that the principles set out by the Enlarged Board in the opinion G 10/91 (OJ 1993, 420) as underlying the admissibility of fresh grounds for opposition, were also generally applicable to the admissibility of late-filed new facts, evidence and arguments intended to support grounds for opposition already covered by the opposition statement.

Likewise, where amended claims were introduced in the opposition proceedings there could be no objection to the opponent's submitting new citations and new arguments against the new claims (T 623/93). The examination by the opposition division of a new submission justified in this way was in keeping with Enlarged Board of Appeal decision G 9/91 (OJ 1993, 408, point 19 of the Reasons).

In T 154/95 the board ruled that in opposition or appeal proceedings it was basically irrelevant how an opponent came across documents or other evidence made available to the public. Thus there was nothing to stop an opponent from citing a prior use invoked in the same case by another opponent whose opposition was inadmissible because it had been filed after expiry of the opposition period.