4.7. Late submissions of new arguments

In T 2053/13 the appellant's (opponent's) inventive step assessment starting from the teaching of document D3 was first presented on the day of the oral proceedings before the opposition division. Document D3 itself had been filed with the notice of opposition; it was however not presented as the closest prior art, but mentioned only in a footnote for a marginal issue. The board recalled that according to G 4/92 (OJ EPO 1994, 149), arguments are reasons based on facts and evidence which have already been put forward. The board considered that rather than merely presenting an additional argument in support of a chain of reasoning already known in an established factual context, the appellant had changed its case. The submission in question introduced a whole new chain of reasoning based on the allegation that document D3 was a promising springboard to the invention as claimed. Thus, the appellant's submission related to a new alleged fact. Filing a piece of evidence did not mean that any alleged fact or objection potentially derivable from that evidence was also introduced into the proceedings. The board was also satisfied that the opposition division had exercised its discretionary power pursuant to Art. 114(2) EPC and R. 116(1) EPC in a reasonable manner when it did not admit the appellant's (then opponent's) new submission.