a) Documents, evidence and objections which could have been presented in the first-instance proceedings 

In T 432/12 the decisive issue was whether there was a sound and plausible reason in this specific case for filing the documents only in the appeal proceedings. In principle, documents could be admitted in the case of e.g. a normal reaction to a late turn of events in the opposition (oral) proceedings, an exceptional interpretation by the opposition division at a late stage or in the decision, or evident non-allowability in view of the newly cited documents and/or objections, (see T 169/12). However, none of these exceptions applied to the case at hand. See also T 1953/16.

In T 724/08 the appellant had already raised a novelty objection in its opposition and therefore could have submitted the late-filed documents during the first-instance proceedings. It was immaterial whether the appellant had indeed only come across these Japanese patent specifications or the corresponding Patent Abstracts of Japan by chance later or whether said documents had genuinely been difficult to find, because it was not permissible to use these issues to slow down proceedings or gain an unfair advantage over the other party. In exercising this power, the board could make admitting a citation dependent on whether it is prima facie relevant but the board was not obliged to do so, because otherwise an opponent could easily submit a (highly) relevant citation for the first time in the statement setting out the grounds of appeal. See also T 1314/12, T 2471/13, T 1826/18, T 2696/16.

In T 62/15 the board stated that prima facie relevance was not mentioned in Art. 12(4) RPBA 2007 and was therefore not necessarily a criterion when considering the admittance of facts or evidence filed with the statement of grounds of appeal. The decisive issue was whether a fact or evidence could and should have been presented before the opposition division (citing T 724/08, T 432/12 and T 1314/12).

Citing T 724/08, the board in T 2734/16 stressed that it was the parties' responsibility to find all relevant prior-art documents and file them in time. It was up to them to take whatever measures and allocate whatever financial resources might be needed for this.

In T 876/05 the board rejected the opponent's argument that filing new documents a few days before the oral proceedings before the department of first instance was destined for failure and that it was therefore preferable for him not to file those documents until the appeal stage. The board held that Art. 10a(4) RPBA 2003 (Art. 12(4) RPBA 2007) put documents that could have been submitted before the department of first instance and documents which had been submitted but had not been admitted on an equal footing. Had these documents been filed in the opposition proceedings, the worst that could have happened was that they would have been regarded as inadmissible by the opposition division, so the consequences would have been no different than if they had not been filed. The board decided to consider only the documents that appeared immediately relevant (T 624/04).

In J 5/11 the Legal Board stated that the Office's duty to examine evidence of its own motion is more stringent in relation to evidence that is in the public domain, and the case for admitting such evidence when it is filed out of time by the parties is correspondingly stronger. The Office's duty to examine of its own motion evidence that is in the private sphere of the party concerned is obviously limited. If evidence of that type is not put forward in the proceedings before the first-instance department of the Office, it is difficult to see any compelling reason why the Board of Appeal should exercise its discretionary power under Art. 114(2) EPC and Art. 12(4) RPBA 2007 in such a way as to admit the evidence when it is filed with the grounds of appeal or a fortiori at a later stage of the appeal proceedings. That is particularly true when the first-instance department has expressly drawn the appellant's attention to the need for supporting evidence.

In T 2117/17 the board held, as regards the parties' duty to facilitate the due and swift conduct of inter partes proceedings, that particularly stringent requirements applied to a late assertion of public prior use, especially if the alleged prior use was their own. The board refused to admit the documents in question, which could have been filed at first instance, in particular because they were not highly relevant and for reasons of procedural economy (Art. 12(4) RPBA 2007).

In the following decisions too, the boards found that documents or objections could already have been filed during the opposition proceedings and exercised their discretion under Art. 12(4) RPBA 2007 not to admit them: T 2193/14 (documents filed with grounds of appeal to launch a substantiated attack on granted dependent claims for the first time), T 1715/08 (evidence filed with grounds of appeal), T 478/17 (Art. 123(2) EPC objection newly raised in grounds of appeal), T 1014/17 (additional prior art filed with grounds of appeal in response to main request already filed at oral proceedings before opposition division). However, see also T 1830/11, T 1554/16 and T 978/17, reported in chapter V.A.5.11.3 b) "Documents and evidence admitted – appropriate and timely reaction".