4.3.6 Submissions not admitted at first instance – error in the use of discretion – Article 12(6), first sentence, RPBA
When applying Art. 12(6), second sentence, RPBA, the boards in opposition-appeal proceedings also review findings that a submission was late-filed and assess whether the opposition division had been right to conclude that the late filing was not justified.
In T 214/20, for instance, the board agreed with the opposition division that the documents which were filed by the proprietor to counter a certain argument of the opponent were to be considered late-filed because they should have been filed already when the argument was first raised.
Likewise in T 1017/20, the board found that the main request submitted at the oral proceedings was not justified by an unexpected turn of events and was thus late-filed. The opponent had already raised the objection which this late-filed main request allegedly sought to address, in the notice of opposition.
In T 1445/22 the board underlined that evidence submitted by an opponent after the expiry of the nine-month period according to Art. 99(1) EPC was generally to be regarded as late-filed. Exceptions to this rule were where such evidence could not have been filed earlier, for example where the subject of the proceedings had changed. The question of whether submissions were filed in due time could not depend on circumstances external to the proceedings.
See chapter IV.C.5.1.4 for more detail on the late filing of main and auxiliary requests by the patent proprietor in opposition proceedings, and chapter IV.C.4.2 for more detail on the late filing of objections and evidence in the opposition proceedings.