According to Art. 12(2) RPBA, the statement of grounds of appeal shall contain a party's complete case. Art. 12(4) RPBA requires the board to take into account everything presented by the parties under Art. 12(1) RPBA if and to the extent that it relates to the case under appeal and meets the requirements in Art. 12(2) RPBA. However, according to Art. 12(4) RPBA, the board has the discretionary power to hold inadmissible facts, evidence and requests which could have been presented or were not admitted in the first instance proceedings.

Art. 12(4) RPBA enables the boards to penalise an infringement of the duty to facilitate the first‑instance proceedings, i.e. a failure to display due co‑operation through the submission of facts, evidence and requests in the manner required up to a certain point in the proceedings, and so serves to ensure compliance with the requirement of a fair procedure and to expedite processing of the case. Moreover, it does not entail any arbitrary different treatment of similar cases of belated submissions which is incompatible with the procedural scheme. The duty to facilitate proceedings applies equally to opponents (with respect to the submission of their objections) and patentees (with respect to their means of defence) (T 2102/08).

In T 432/12 the decisive issue was whether the documents could have been presented before the opposition division, i.e. whether there was a sound and plausible reason in this specific case for filing them only in the appeal proceedings. In principle, documents could be admitted in the case of e.g. a normal reaction to a late turn of events in the opposition (oral) proceedings, an exceptional interpretation by the opposition division at a late stage or in the decision, or evident non-allowability in view of the newly cited documents and/or objections, (see also T 169/12). However, none of these exceptions applied to the case at hand.

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