c) Documents and evidence admitted under Art. 12(4) RPBA 2007

In T 1830/11 the board admitted evidence produced with the statement of grounds of appeal. It found that there were no provisions in the EPC which obliged the opponent to provide evidence against every possible fallback position defined in the dependent claims. Thus when amendments were made to the claims during oral proceedings before the opposition division (as in the case at issue, claim 1 having been amended to include the features of a dependent claim in the patent as granted), the requirement under Art. 114(2) EPC that evidence be submitted "in due time" might, depending on the circumstances, arise only when the statement of grounds of appeal was filed.

In T 79/11 various sets of experimental data were submitted with the statement of grounds of appeal, clearly in response to the decision under appeal and with a view to supporting the appellant's (patentee's) arguments on inventive step. Although the data could already have been submitted at first instance, their later submission was not an unreasonable response to the reasons given for the decision under appeal.

In T 1003/15 it appeared obvious that the new submitted documents D4 and D5 were prima facie relevant, not only for the claims which were found to meet the requirements of the EPC during the opposition proceedings, but also for the claims of the main request submitted in the appeal proceedings.