3.2.9 Strategic procedural approaches of parties to presenting evidence

In T 1096/08, notwithstanding that both witnesses were offered at a very late stage, the board could not share the view of the opposition division. Exercising its discretion under Art. 12(4) and 13(1) RPBA 2007, the board considered it appropriate to take evidence from the two witnesses offered by the respondent (opponent) during the first oral proceedings. However, the piecemeal approach taken by the respondent in asserting another alleged prior use shortly before the second oral proceedings clearly could not have been dealt with by the appellant or the board without yet another adjournment of the oral proceedings. Therefore, regardless of its relevance, the board decided not to admit this allegation of prior use into the proceedings and not to hear the witness offered as to such use.

In T 245/10 the board held that the respondent (opponent) had had sufficient time to consider the results of comparative tests filed with the statement of the grounds of appeal, and admitted them into the appeal proceedings. The respondent had announced in 2010 that it would comment on those tests and in filing its own comparative tests only a month before the oral proceedings in 2012, the respondent had taken the risk of compromising the admissibility of its own tests, the board observing that a piecemeal strategy resulting in multiple rounds of oral proceedings devoted solely to the admissibility of late-filed evidence ran counter to procedural economy (Art. 15(6) RPBA 2007; citing T 270/90, OJ 1993, 725, point 2.2 of the Reasons – tactical abuse of procedure). See also T 2010/08.