3.2.6 Evidence submitted "in due time"

In T 1830/11 the board observed that there are no provisions in the EPC obliging opponents to provide evidence against every possible fallback position defined in the dependent claims. Thus, if amendments were made to the claims during oral proceedings before the opposition division, the obligation to submit evidence "in due time" under Art. 114(2) EPC might, depending on the circumstances, arise first at the stage of filing the statement of grounds of appeal. See also T 998/17.

The board in T 574/02 found that documents could not be considered late-filed simply because they had only been submitted on appeal, and any board faced with a request that it refuse to admit a document or evidence as late-filed first of all had to verify whether it really was late or whether, in the particular circumstances of the case, it had been submitted in due time. Finding that the filing party had at all times acted and reacted promptly and with good judgment, the board held that the documents had been submitted in due time within the meaning of Art. 114 EPC. See also T 1647/15 in chapter III.G.3.3.4.