4.3.7 Submissions that should have been submitted or which were no longer maintained at first instance – Article 12(6), second sentence, RPBA
In T 623/20 an experimental report was filed by respondent 1 with the reply to the grounds of appeal. It was intended to demonstrate lack of reproducibility of a certain starting material prepared in an example of the impugned patent. However, the board considered that this experimental report should have been filed before the opposition division. The respondent had raised this objection that the example in question could not be identically reproduced during opposition proceedings and they should then also have filed any evidence in support of this objection. According to the established case law of the boards of appeal, each of the parties to the proceedings bears the burden of proof for the facts it alleges.