b) Documents and evidence admitted – appropriate and timely reaction 

In T 1830/11 the board admitted evidence produced with the statement of grounds of appeal. It found that there were no provisions in the EPC which obliged the opponent to provide evidence against every possible fallback position defined in the dependent claims. Thus when amendments as in the case at issue were made to the claims during oral proceedings before the opposition division, the requirement under Art. 114(2) EPC that evidence be submitted "in due time" might, depending on the circumstances, arise only when the statement of grounds of appeal was filed.

In T 79/11 various sets of experimental data were submitted with the statement of grounds of appeal, clearly in response to the decision under appeal and with a view to supporting the appellant's (patentee's) arguments on inventive step. Although the data could already have been submitted at first instance, their later submission was not an unreasonable response to the reasons given for the decision under appeal.

In T 394/15 the opposition division had allowed a request filed for the first time one month before the oral proceedings at first instance. The board considered the documents filed in response with the statement of grounds of appeal to be a justified and timely reaction.

Other decisions in which the boards considered the filing of documents and evidence to be an appropriate and timely reaction include e.g. T 1554/16 (response to a combination of several claims and insertion of features from the description); T 978/17 (large number of possible claim combinations which the opponent could not reasonably be expected to cover in advance), T 2682/16 (comparative tests filed in response to the opposition division's decision finding, contrary to the opponent's line of argument, that an effect was achieved across the whole breadth of the claim), T 2182/17 (document presenting calculations considered to be a direct response to an argument of the opposition division in the contested decision), T 1711/16 (objection that claim 1 lacked novelty over D2 had been raised for the first time during the oral proceedings before the opposition division), T 247/17 (the opposition division's reversal of its opinion could not have been expected by the patent proprietor prior to the oral proceedings and so further evidence admitted).