(Where submissions of the parties are filed late in respect of the date indicated in the note to the summons to oral proceedings pursuant to Rule 116(1), refer primarily to E‑III, 8.6).
The EPO may disregard facts or evidence (e.g. publications) which are not submitted in due time by the parties concerned.
This also applies to grounds for opposition not submitted in due time, together with supporting facts and evidence in opposition proceedings (see D‑V, 2.2). Note in this respect that according to G 1/95 and G 7/95, Art. 100(a) does not constitute one single ground for opposition, but has to be considered a collection of individual grounds for opposition, i.e. individual legal bases for objection to the maintenance of a patent. This applies not only to distinctly different objections, such as subject-matter which is not patentable (Art. 52(2)) as compared to subject-matter which is not capable of industrial application (Art. 57), but also to an objection for lack of novelty as opposed to an objection for lack of inventive step.
New arguments based on facts, evidence and grounds constituting the legal and factual framework of the opposition cannot be disregarded.
In deciding whether to admit facts, evidence or grounds for opposition not filed in due time, their relevance to the decision, the state of the procedure and the reasons for belated submission are to be considered. If examination of late-filed grounds for opposition, late-filed facts or late-filed evidence reveals without any further investigation (i.e. prima facie) that they are relevant, i.e. that the basis of the envisaged decision would be changed, then the competent department has to take such grounds, facts or evidence into consideration no matter what stage the procedure has reached and whatever the reasons for belated submission. In that case, the principle of examination by the EPO of its own motion under Art. 114(1) takes precedence over the possibility of disregarding facts or evidence under Art. 114(2) (see T 156/84). Note, however, the limits on the obligation to undertake further examinations as set out in E‑VI, 1.2. Otherwise, the department informs the party concerned in the decision, with due regard to Art. 113(1) (see T 281/00), that the facts, evidence and/or grounds for opposition were not submitted in due time and, since they are not relevant to the decision, will be disregarded pursuant to Art. 114(2). On the apportionment of any costs arising from the late filing of facts and evidence, see D‑IX, 1.4.
The latest date up to which submissions can be considered at all is the date on which the decision is handed over to the EPO's internal postal service for transmittal to the parties (see G 12/91).
The above applies in written proceedings; in oral proceedings submissions can only be considered up to the pronouncement of the decision (see E‑III, 9).