3.2.3 Late-filed evidence before the board of appeal - rejected

In T 100/97 the board discussed in detail the criteria to be applied to late-filed evidence. Since a UK infringement action had been stayed pending the outcome of the EPO appeal, a swift settlement of the case was especially desirable, and admitting facts and evidence submitted at a late stage might have resulted in a remittal protracting the already lengthy proceedings and thus further delaying the UK proceedings. Moreover, for the contents of the statements to be considered sufficiently credible, they had to be corroborated by documents of a definite date. Taking into account the very late stage in the proceedings and in the absence of any such documents, it could not be established with a sufficient degree of certainty what had been made available to the public before the priority date of the opposed patent; the board therefore decided to disregard the late-filed evidence (Art. 114(2) EPC). Compare with T 1057/09 (point 5.9 of the Reasons) concerning remaining doubts as to the authenticity of a late evidence.