If oral proceedings are arranged, the opposition division issues a summons together with an annex drawing attention to the points to be discussed (Rule 116(1)) and normally containing the division's provisional and non-binding opinion (see D‑VI, 3.2). The following situations may arise:
It should however be noted that if in the provisional and non-binding opinion the division reaches the conclusion that maintenance of the patent is not prejudiced by the facts and evidence submitted so far by the opponent, this fact per se does not give the opponent the right to have new facts and evidence admitted into the proceedings, even if submitted before the final date fixed under Rule 116(1).
If during the oral proceedings the opposition division, contrary to its provisional opinion set out in the annex to the summons, reaches the conclusion that the patent should be revoked, a request of the proprietor for (further) amendment should be admitted into the proceedings (see E‑III, 8.6).
However, if the proprietor's requests relate to amendments based only on claims as granted and are reasonable in number, new facts and evidence submitted by the opponent should be treated as late-filed even if submitted before the final date, i.e. they should be admitted only if they are prima facie relevant. Relevant facts and evidence submitted at a late stage of the proceedings, possibly not until the oral proceedings for example, could give rise to a decision on apportionment of costs, see D‑IX, 1.2, if so requested by the proprietor.
It may only become apparent in the oral proceedings that the pending request submitted to overcome grounds for opposition is not allowable under the EPC. The opponent should always expect to have to discuss subject-matter based on dependent claims as granted if they are reasonable in number.
However, if late-filed requests are based on subject-matter not previously covered by the claims, they will normally not be admitted into the proceedings also for reasons of procedural efficiency. Admission of such requests could give rise to a postponement of oral proceedings, and to a decision on apportionment of costs.