5.13.4 Cases of abuse of procedure
In some decisions, the boards of appeal have held that there has been no tactical abuse and taken late-filed documents into account under the principle of examination by the EPO of its own motion, since these might have put maintenance of the patent at risk (see T 110/89, T 315/92). In T 1029/05 the board stated that the issue of admissibility of the late-filed document boiled down to the following questions: (i) whether the late filing is to be seen as an abuse of proceedings, and, if question (i) is answered in the negative, (ii) whether the relevance of the document is prima facie such as to justify its introduction into the proceedings (see also T 2020/09, T 158/14).
In several decisions, the boards considered that information had to have been withheld intentionally for this to amount to an abuse of procedure (see e.g. T 534/89, T 1019/92, T 1182/01, T 671/03, T 1029/05), but see also the decisions reported in section b), many of which did not require any such intent).
In T 1019/92 the board reached the conclusion that the fact that an opponent, after the end of the opposition period, subsequently submitted prior art material originating from itself, did not constitute an abuse of the proceedings in the absence of evidence that this was done deliberately for tactical reasons. However, see also T 1757/06 (abstract in next section).
In T 671/03 the opposition division did not admit documents D6 to 16 into the proceedings, stating that they had been filed more than two years after the expiry of the opposition period and were prima facie not so complete as to substantiate the alleged prior use. Three more documents were filed during the appeal proceedings. However, it was not apparent to the board that the submission of documents D6 to D19 had been deliberately delayed for tactical reasons. Documents D6 to D19 could therefore not be disregarded without considering their relevance. Following a detailed examination of the relevance of the various documents, the board concluded that D18 could be admitted into the proceedings because it was prima facie highly relevant (T 1182/01 and T 1029/05).
In T 151/05 the fact that the appellant relied first on prior use 2 and then, after having realised that this argument was not sufficiently substantiated, on other evidence for demonstrating the common general knowledge was seen by the board as a misjudgement but not as an abuse of the proceedings. Consequently, the board considered the relevance of the documents. See also T 552/18.