4.3. Sufficient reasoning

According to the consistent case law of the boards of appeal, although Art. 114(2) EPC gives an opposition division discretion not to consider facts and evidence not submitted in due time, the division is obliged to give reasons for its decision; it is not enough merely to cite their late submission (T 705/90, T 214/01, T 1855/13, T 1984/19). Even if submissions are late-filed, their admission remains a procedural aspect over which the opposition division can exercise discretion. As a consequence, the decision needs to show the reasoning why the discretion was exercised one way or the other (T 1855/13).

In T 2097/10, the board found that the brief statement of reasons given by the opposition division – to the effect that documents D18 and D19 were relevant and not especially voluminous – was sufficient. Moreover, it was not apparent from the minutes that the patentee's representative had been denied an opportunity to comment on those documents, or that they had asked for more time to prepare such comments but their request had been refused.

In T 544/12 the board pointed out that a bare assertion of a lack of prima facie relevance was not by itself sufficient reasoning.

In T 1984/19 the board found that while an opposition division must have a certain freedom in admitting or disregarding late-filed evidence, the reasoning given in the contested decision for not admitting D16 into the opposition proceedings was insufficient in view of R. 111(2) EPC. From the decision and the minutes, the board was unable to comprehend which considerations had led the opposition division to the conclusion that the content of D16 did not go beyond the content of the documents on file and why D16 was considered not relevant for the outcome of the case, whether in view of novelty or inventive step. In order to ascertain whether the opposition division had exercised its discretion properly (G 7/93, OJ 1994, 775), it was essential for the board to know which principles the opposition division had taken into account and which interests it had balanced.