4.5. Third level of the convergent approach – submissions filed after notification of the Article 15(1) RPBA communication or after expiry of period specified in Rule 100(2) EPC communication – Article 13(2) RPBA

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Case Law of the Boards of Appeal
Case Law of the Boards of Appeal of the European Patent Office
V. Proceedings before the Boards of Appeal
A. Appeal procedure
4. New submissions on appeal
4.5. Third level of the convergent approach
4.5.5 Admittance of new facts, objections, arguments and evidence

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4.5.5 Admittance of new facts, objections, arguments and evidence

Overview

4.5.5 Admittance of new facts, objections, arguments and evidence

The main aspects of the case law on admitting new submissions at the third level of the convergent approach have already been outlined in chapter V.A.4.5.1. Structured by topic, the following now looks in more detail at the case law on admitting new facts, objections, arguments and evidence.

a) Waiting for the preliminary opinion not compatible with convergent approach

b) Justified response to new requests in the reply to the appeal

c) Justified response to new line of arguments in the board's preliminary opinion

d) Justified response to a reweighting of the case in the board's preliminary opinion

e) Justified response to new developments in the case following the communication under Article 15(1) RPBA

f) Board's opinion based exclusively on earlier party submissions or reasoning of the first-instance division

g) Importance of a direct response to the other party's written submissions

h) Inventive step objection following unsuccessful novelty objection

i) Further cases in which the new submissions should have been filed earlier

j) Basis of the appeal proceedings unchanged and amendment not detrimental to procedural economy

k) Immediately apparent that objection raised against different request also applies to request at issue

l) Appellant's silence in response to unsubstantiated submissions by the respondent

m) Prima facie relevance

n) Submission of new evidence

o) Allegation of public prior use

p) Allegation and evidence of common general knowledge

q) Decisions and opinions by national courts filed at the earliest opportunity

r) Filing of translations

s) Circumstances in the sphere of the representative

t) No absolute right to discussion of all objections raised at first instance

u) Further illustration of the technical teaching by means of photographs