T 0669/90 (Inviting observations) du 14.08.1991

1. If the EPO sends a communication which (on a reasonable interpretation) misleads a party into believing that it is not necessary to defend its interests by filing observations in reply to new facts and evidence filed by an adverse party, and if such new facts and evidence then form the basis for a decision adversely affecting the misled party, the latter has not had "an opportunity to present its comments" within the meaning of Article 113(1) EPC. Such a procedure is also not a fair procedure and is contrary to the principle of good faith governing relations between the EPO and parties to proceedings before it (Decision T 22/89 dated 26 June 1990 not followed).

2. Following the late filing of new evidence by an opponent, if the EPO intends to consider such evidence in view of its relevance to the decision to be taken, then in the absence of observations upon such evidence by the patent proprietor, it is necessary within the meaning of Article 101(2) EPC to invite the proprietor to present his comments by filing observations before the case can be decided on the basis of such evidence. This necessity follows both from Article 113(1) EPC and from the general principles of procedural law applicable under Article 125 EPC.