4.3.2 Rule 116(1) EPC – not an invitation to file new submissions

In T 628/14 the board recalled that, according to the established case law, R. 116(1) EPC should not be construed as an invitation to file new evidence or other material departing from the legal and factual framework of issues and grounds pleaded as established with the notice of opposition (citing T 39/93, OJ 1997, 134). Also, the fact that the opposition division expressed a preliminary opinion in its communication did not necessarily justify the filing of new evidence, unless this was in reaction to new aspects raised in the communication.

The board in T 66/14 observed that, according to case law, evidence first submitted by an opponent after expiry of the nine-month period under Art. 99(1) EPC was generally to be regarded as late for the purposes of Art. 114(2) EPC, and that R. 116(1), fourth sentence, EPC was not to be understood to mean that a fresh period during which new evidence could be filed without being treated as late was triggered on issue of the summons to oral proceedings (T 841/08). However, there may be cases in which special circumstances justify an opponent's not filing evidence until after the nine-month period under Art. 99(1) EPC and in which, therefore, that evidence is not to be treated as late for the purposes of Art. 114(2) EPC (T 532/95). In particular, new evidence submitted after the date referred to in R. 116(1) EPC is to be admitted if the subject of the proceedings has changed.