4.5.2 Late-filed documents and evidence

In T 188/05 the board held that the admission of the appellant's new submission would alter his case in a way that would raise issues which the board and the respondent could not reasonably be expected to deal with without adjournment of the oral proceedings. The material was therefore not admitted to the proceedings.

In T 1774/07 the introduction of the new documents into the proceedings without adjourning oral proceedings would have been contrary to the principle of equal treatment of the parties. The board thus concluded that the documents, independently on their relevance, were not to be introduced into the proceedings.

In T 232/08 the objection of lack of novelty based on document D11 was raised for the first time during appeal proceedings at the oral proceedings. The board considered that the respondent's right to be heard with regard to the novelty-objection based on document D11 would have been respected only if the oral proceedings had been adjourned or the case had been remitted to the department of first instance in order to allow the respondent adequate consideration of the appellant's objection. Consequently the board had decided not to allow the appellant to present its novelty objection based on document D11.

In T 139/12, after the oral proceedings had been arranged, the appellant filed new evidence as a basis for attacking novelty for the first time and launching a new attack on inventive step. The board held that that amounted to an entirely new line of argument on the basis of new evidence that lay outside the scope of the appeal proceedings as defined by the statement of grounds of appeal and the reply. Admitting such a fresh case would normally make remittal necessary and, at the very least, would mean adjourning the oral proceedings in order to give the respondent the opportunity to respond appropriately.

In T 1058/15, the appellant raised a novelty objection based on a new document (D8) filed only a few weeks before the oral proceedings on appeal. The board observed that this objection did not amount to an entirely fresh ground for opposition, which could have been admitted on appeal only with the patent proprietor's consent (G 9/91, OJ 1993, 408), because novelty had already been challenged on the basis of a different document during the opposition proceedings. The circumstances and the interests at stake were nevertheless similar because, here too, the patent proprietor (respondent) had been equally entitled to expect that no additional ground for opposition resulting in greater procedural complexity would be newly raised during the appeal proceedings. Since the respondent had not agreed to the new document's admission, the board decided not to admit it, irrespective of its relevance.

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