4.7.2 Late submissions of new arguments in opposition proceedings

According to the case law of the boards of appeal, Art. 114(2) EPC provides no legal basis for disregarding late-filed arguments. Art. 114(2) EPC refers to late-filed facts and evidence ("Tatsachen und Beweismittel" in German; "faits et preuves" in French), but not legal submissions and arguments (T 861/93, T 386/01). Late-filed arguments cannot therefore be disregarded on the grounds that they were submitted for the first time at the oral proceedings (T 92/92, T 704/06). In T 710/15 the board confirmed that Art. 114(2) EPC was not a basis for disregarding arguments not submitted in due time. For the admission of new arguments before the boards of appeal, see also T 1914/12 citing and disagreeing with T 1069/08 and T 1621/09, and chapter V.A.4.10.1.

In T 92/92 the board held that the EPC in the English version made a clear distinction between "facts and evidence" on the one hand and "arguments" on the other in Art. 114(1) EPC 1973 and that Art. 114(2) EPC 1973 did not refer to arguments. Art. 114(2) EPC 1973 was to be interpreted such that the parties' right to argue their case was not unduly restricted.

Under R. 71a EPC 1973 (R. 116 EPC) new facts and evidence do not need to be considered after the time stated in the summons, unless they are admitted on the grounds that the subject of the proceedings has changed. R. 71a EPC 1973, and Art. 114(2) EPC 1973 on which it is based, refer to late-filed facts and evidence but not to new arguments, which can be made at any stage in the proceedings. In accordance with the jurisprudence, therefore, new arguments in support of facts already adduced have to be considered in accordance with R. 71a(1) EPC 1973, even if presented after the date specified in the summons, and equally cannot be rejected by citing Art. 114(2) EPC 1973 (T 131/01, OJ 2003, 115; T 926/07, T 1553/07).

In T 2238/15 too, the board (citing T 92/92) endorsed the view that the EPC distinguished clearly between "facts and evidence" and "arguments" and provided no basis for refusing to admit late-filed arguments. The discretion under Art. 114(2) EPC to disregard late-filed facts and evidence therefore did not extend to arguments, and that applied equally to new arguments not submitted until after the date fixed in the summons to oral proceedings (see R. 116 EPC).

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