c) Article 114(2) EPC as legal basis 

In many decisions the boards have relied on Art. 114(2) EPC (sometimes in conjunction with R. 71a EPC 1973 or R. 116 EPC as its implementing provision) as the legal basis for the opposition division's discretion to admit or disregard late-filed requests (see in particular T 1105/98, which cited the preparatory documents to R. 71a EPC 1973, without however distinguishing between paragraphs 1 and 2 of R. 71a EPC 1973; see also e.g. T 4/98, T 811/08, T 66/12, T 1214/12, T 2385/12, , T 2332/15, T 44/17, T 350/17 and T 879/18). In T 1855/13 a submission containing a claim request was explicitly considered to be a fact within the meaning of Art.114(2) EPC (see also T 604/01 in which the patent as granted and the claims as amended were considered facts; and T 1776/18 in which the board held a patent claim was to be regarded as a statement of technical facts in legal terms and thus qualified as "facts or evidence" within the meaning of Art. 114(2) EPC). See also the additional case law outlined in T 1776/18, point 4.5 of the Reasons, and T 364/20.

The board in T 1776/18 highlighted examples of case law in which the opposition division's discretion not to admit claim requests was considered to have its legal basis in Art. 114(2) EPC specifically in conjunction with R. 116(1) EPC (see e.g. T 1270/18, T 85/19). It further observed there were also decisions in which Art. 114(2) EPC in conjunction with R. 116(2) EPC was considered to be the legal basis for not admitting amended claim requests (e.g. T 2536/12, T 1758/15). The board agreed with the case law according to which Art. 114(2) EPC constituted a legal basis for not admitting claim requests, concluding that in submissions containing claim requests which were explicitly or implicitly substantiated, factual elements were present. The presence of these factual elements allowed Art. 114(2) EPC to be relied on as a legal basis for disregarding claim requests which were not filed in due time (J 14/19). Applying Art. 114(2) EPC to amended claim requests and hence to the submissions of both opponents and patent proprietors also ensured that the parties were treated equally and according to the same criteria, which guaranteed equality of arms. See also T 364/20, T 1733/22.

For the contrary view according to which Art. 114(2) EPC cannot serve as a basis for the opposition division's discretion to admit or refuse requests, see T 755/96, T 281/99, T 688/16, T 754/16.

In T 281/99 the board was not aware of any article or rule under the EPC nor of any case law which would oblige the opposition division to refuse new claims submitted during the proceedings irrespective of their contents and the reasons for their late filing. It stated that Art. 114(2) EPC did not relate to the submission of amended claims, but noted that even this article did not affect the opposition division's discretion to accept new facts and evidence which were not submitted in due time.

In T 754/16 the board stated that Art. 114(2) EPC did not provide a basis for disregarding the auxiliary requests filed during the oral proceedings before the opposition division, since, firstly, this article did not apply to late-filed requests in the form of amended claims, but only to late-filed facts and arguments. Secondly, the auxiliary requests in the case in hand were filed in due time, as a direct and immediate response to the opposition division's changed opinion and since the proprietor had no earlier opportunity to react thereto.