n) Submission of new evidence 

(i) Evidence filed with unnecessary delay 

In T 1904/16 the board did not see any cogent reasons why the new facts and evidence could only have been filed at the latest possible stage of the appeal proceedings, i.e. at the oral proceedings. In the board's view, the issue raised by the new submissions should have been brought up immediately in reply to the statement of grounds of appeal. To admit these submissions into the proceedings would be against the principle of fair proceedings, since the respondent's conduct had led the appellant to believe that this objection was no longer a matter for discussion. Furthermore, it would be contrary to procedural economy, since its admission would require additional discussions, which could not be held without adjournment of the proceedings.

In T 2271/17 the respondent (patent proprietor) submitted experimental data shortly before the oral proceedings before the board, allegedly in reaction to a surprising preliminary opinion of the board in relation to inventive step vis à vis D1. The board however pointed out that the board's communication in relation to this issue was based only on aspects of the case already comprised in the written submissions of the parties in appeal proceedings. Moreover, as admitted by the respondent, the experimental data were available much earlier. In the board's view, this unnecessary delay at least contributed to the appellant having insufficient time before oral proceedings to prepare an appropriate response, and was not appropriately justified.

(ii) Evidence filed at the earliest opportunity 

In T 34/18 the board took account of evidence (two Austrian judgments) submitted around one month before the oral proceedings with a view to rebutting new evidence and arguments previously submitted by the opposing party.

See also T 415/20 (summarised in chapter V.A.4.5.5e).