3.2.8 Large volume of evidence

It is clear from the provisions of Art. 13 RPBA 2007 that, in spite of the principle of the right to be heard under Art. 113(1) EPC, a party does not have the right to have evidence which he filed or offered during appeal proceedings, in particular during inter partes proceedings, admitted into these proceedings (T 1676/08). In T 1676/08 the patent proprietor had submitted as evidence – allegedly in response to expert opinions submitted by the opponent – a large volume of documents comprising more than a thousand pages and containing expert opinions only one month ahead of the oral proceedings, which the board had already postponed once at the proprietor's request. The board refused to admit one of those expert opinions (D100), finding that D100 was not identifiable as of particular relevance among submissions of over a thousand pages. It also refused to order at such a late stage an opinion by an expert pursuant Art. 117(1)(e) EPC or to hear the party's expert at the oral proceedings in the capacity of an accompanying person (application of G 4/95).

The board in T 508/00 (allegation of prior use) refused to admit documents (large in number and including technical drawings) submitted by the opponent. By contrast, it admitted written statements produced by the opponent because they related to the alleged prior use, had been submitted relatively early in the appeal proceedings, giving the patent proprietor time to respond to them, and constituted a response to the opposition division's decision and to employee statements produced by the proprietor a month prior to the oral proceedings before the opposition division.