k) New defence or evidence in response to objections raised late in the proceedings 

In T 291/21, the respondent (patent proprietor) submitted a test report with the reply. The board considered this report to be a reaction to the specific objections raised against the examples of the patent for the first time just before the oral proceedings before the opposition division. Since the report had been submitted so close to the date of the oral proceedings, the patent proprietor realistically would not have been able to carry out more comparative tests. Moreover, the opposition division's preliminary opinion regarding inventive step had been positive. The board also considered that the content of the submitted tests did not go beyond the scope defined in the patent, so the tests were admitted (Art. 12(4) and (6) RPBA).

Similarly, in T 802/20 the appellant (patent proprietor) filed the experimental report D22 with the statement of grounds of appeal in order to show the presence of a technical effect over the closest prior art. The board admitted the report under Art. 12(4) and (6) RPBA, for the following reasons. The auxiliary request at issue (main request in appeal) had been filed shortly before the final date under R. 116 EPC, the corresponding objection of lack of inventive step only shortly before the oral proceedings. In the board’s view, filing D22 with the statement of grounds of appeal could be seen as having been made at the earliest opportunity. See also T 1778/21 (response to opponent’s inventive step objection raised only two months prior to date of oral proceedings).

See however T 1198/21, in which two experimental reports filed with the statement of grounds of appeal in response to experimental data filed by the opponent two months before the oral proceedings were not admitted.