5.13.7 Admission of submissions relating to Article 55(1)(a) EPC

In T 1682/15, with the statement of grounds of appeal, the appellant (patent proprietor), for the first time, requested that D(28) be disregarded, since its disclosure was due to an evident abuse within the meaning of Art. 55(1)(a) EPC. The submissions were not presented before the opposition division, although D(28) had been filed by the opponent with its notice of opposition and, throughout the opposition proceedings, D(28) was considered to be highly pertinent. Moreover, all the evidence filed by the appellant in support of the alleged evident abuse lay within its own knowledge and sphere and had already been available to it when D(28) was first cited in the opposition proceedings. Accordingly, the board could not see any reason which could have prevented the appellant from already presenting its submissions concerning an evident abuse during the opposition proceedings (Art. 12(4) RPBA 2007).