With respect to facts and evidence not submitted in due time or arguments presented at a late stage in the proceedings in general, see E-V, 2. Concerning facts and evidence not filed within the opposition period, see D-IV, 18.104.22.168(v).
Rule 116(1), being an implementation of Art. 114(2) as a further development on the existing jurisprudence regarding facts or evidence not filed in due time, makes it clear that the Examining or Opposition Division has a discretion to disregard new facts or evidence for the reason that they have not been filed before the date indicated in the summons under Rule 116, unless they have to be admitted because the subject of the proceedings has changed. An example of such a change would be where, in timely response to the points raised in the note annexed to the summons, the proprietor files amendments which have the result that a new document becomes relevant; in such a case the opponent should be allowed to present this document and must be given a chance to comment on the amendments (Art. 113(1)). A further example is where a new ground of opposition is introduced during oral proceedings: the opponent should always be granted the right to be heard, even where the arguments concern a late-filed ground of opposition and new arguments and evidence related to it (T 117/02).
Rule 116(2) imposes the same obligations on the applicant or patent proprietor when submitting new documents which meet the requirements of the EPC (i.e. new amendments to the description, claims and drawings) as Rule 116(1) imposes on the parties in submitting new facts and evidence. Here the Division also has the discretion to disregard amendments because they are filed too late before the oral proceedings. However, where the opponent files, before the indicated date, pertinent new material, the patent proprietor must be given a chance to present his comments and submit amendments (Art. 113(1)).
Analogously, the proprietor should always be given the opportunity to submit amendments intended to overcome objections raised by the Division which depart from a previously notified opinion (T 273/04).
In exercising this discretion, the Division will in the first place have to consider the relevance of the late-filed facts or evidence (see E-V, 2) or the allowability of the late-filed amendments, on a prima facie basis. If these facts or evidence are not relevant or if these amendments are clearly not allowable, they will not be admitted. Before admitting these submissions, the Division will next consider procedural expediency, the possibility of abuse of the procedure (e.g. one of the parties is obviously protracting the proceedings) and the question whether the parties can reasonably be expected to familiarise themselves in the time available with the new facts or evidence or the proposed amendments.
As regards procedural expediency: where the late-filed facts or evidence are relevant, but their introduction would cause a prolonged adjournment of the proceedings, the Division may decide to not admit these facts or evidence in the proceedings. An example would be where the witness lives abroad and still has to be found or lengthy tests are still necessary. The Division may, however, also postpone the proceedings and in doing so may have to consider the apportionment of costs in opposition proceedings (Art. 104).
An example of possible abuse of the proceedings would be a proliferation of auxiliary requests, introduced at short notice by the patent proprietor, which are not a reaction to the course of the proceedings. Another example would be an opponent who files an assertion of public prior use, based on activities of the opponent himself, late in the absence of good reasons for the delay (see T 534/89). Another would be the filing of requests subject to conditions to be met by the Division. It is the duty of any party to proceedings to make its own case and to formulate its own requests (see T 446/00).
In opposition proceedings the parties should be heard on such matters. If the Opposition Division approves the introduction of new facts or evidence and if the other parties have not had sufficient time to study them, it should, where easily comprehensible subject-matter is involved, grant the parties an opportunity of familiarising themselves with it, possibly by briefly interrupting the oral proceedings. If this is not feasible, the other parties must, upon request, be given the opportunity to comment in the proceedings subsequent to the oral proceedings, where appropriate in a further set of oral proceedings. Where possible, however, oral proceedings should not be adjourned. Where possible, legal commentaries, decisions (of a Board of Appeal, for example) and reports on legal decisions which are to be referred to in oral proceedings should be notified to the Opposition Division and the other parties in good time before the proceedings. They may, however, be quoted or submitted for the first time in the oral proceedings themselves if the Opposition Division agrees after consulting the parties.
As regards the costs which may be incurred for late submissions, see D-IX, 1.4.