T 0633/97 (Optical members/HERAEUS) du 19.07.2000

Exercise of discretion with respect to
evidence and requests
State of the art - document published before priority date (no) - insufficient proof
Prior use - prima facie confidentiality obligation (yes)

1. Once oral proceedings have been arranged in appeal cases, the decision to admit new evidence or requests into the procedure should be governed primarily by a general interest in the appeal proceedings being conducted in an effective manner, i.e. in dealing with as many of the issues raised by the parties as possible, while still being brought to a close within a reasonable time.
2. In these circumstances, new submissions should normally be disregarded if the complexity of the technical or legal issues raised is such that neither the Board nor the other party can be clearly expected to deal with them without adjournment of the oral proceedings. Complex fresh subject matter filed at short notice before or during oral proceedings thus runs the risk of being not admitted to the proceedings without any consideration of its relevance or allowability. (See Reasons for the Decision, point 2)