4.3.6 Submissions not admitted at first instance – error in the use of discretion – Article 12(6), first sentence, RPBA 2020
This section has been updated to reflect case law and legislative changes up to 31 December 2023. For the previous version of this section please refer to the "Case Law of the Boards of Appeal", 10th edition (PDF). |
When applying Art. 12(6), second sentence, RPBA 2020, the boards in opposition-appeal proceedings also review findings that a submission was late-filed and assess whether the opposition division had been right to conclude that the late filing was not justified.
In T 214/20, for instance, the board agreed with the opposition division that the documents which were filed by the proprietor to counter a certain argument of the opponent were to be considered late-filed because they should have been filed already when the argument was first raised.
In T 1017/20 the board explained that the opposition division had discretion not to admit late-filed requests under R. 116(1) and (2) EPC. The opponent had raised the objection, which was allegedly addressed by the main request filed during the oral proceedings, already in the notice of opposition. The summons to oral proceedings similarly referred to this objection. Consequently, the main request submitted at the oral proceedings was not justified by an unexpected turn of events and was late-filed.
A counter-example can be found in T 290/20. In this case document D6 had been filed by the opponent after the date set by the opposition division under R. 116 EPC and less than four weeks before the oral proceedings, according to the opponent in reaction to the proprietor’s late filing of auxiliary request 4 (single independent claim directed to a process). The opposition division had not admitted D6 as it considered that this document could have been filed earlier and that it was not more relevant than other documents already in the proceedings. The board however admitted D6 into the proceedings. The filing of auxiliary request 4 shortly before the date of the oral proceedings before the opposition division, and the arguments brought forward by the proprietor in support of inventive step of claim 1 of that request, represented a change in the course of the opposition proceedings, which justified the filing of a new document as a reaction by the opponent.
See chapter IV.C.5.1.4 for more detail on the late filing of main and auxiliary requests by the patent proprietor in opposition proceedings, and chapter IV.C.4.3 for more detail on the late filing of objections and evidence in the opposition proceedings.