Practitioners before the EPO are aware that EPO proceedings are front-loaded. In effect, all evidence, amendments and arguments should be on file as early as possible in the proceedings. This especially applies to inter-partes proceedings, in which late-filed evidence or amendments could place other parties at a disadvantage.
The front-loading principle before the Boards of Appeal of the EPO is embodied in Article 114(2) EPC, which allows the EPO to disregard "facts or evidence" which are not submitted in due time. Articles 12 and 13 of the Rules of Procedure of the Boards of Appeal also set limits on the extent and timing of late submissions.
Generally, new facts, documents and evidence would be considered, if the filing was occasioned by an argument or a point raised by another party or in the appealed decision and could not have been filed before under the circumstances of the case. The timing of the filing is also a consideration.
Article 114(2) EPC does not mention late-filed "arguments", and many decisions of the Boards of Appeal interpreted this in a limiting manner (such as T92/92 and G4/92). Under this interpretation, late-filed arguments would always be admissible.
However, the EPO has also recognised that late-filed arguments – even if they are based on the same evidence – can substantially alter a party's case, and may place other parties at a disadvantage, in a similar manner to late-filed evidence.
We have noted a trend in a number of recent decisions from the Technical Boards of Appeal in cases in which the admissibility of late-filed arguments was at issue. In decisions T55/11 and T1621/09, a distinction is made between late-filed arguments which are a merely development of previous argumentation, or which present a completely new case. Arguments which are a development of previous argumentation are likely to be admitted, while arguments which present a completely new case may be rejected. In T1621/09, in particular, the Board applied similar considerations to late-filed arguments as had previously been applied to late-filed evidence: the timing of the arguments, the complexity of the arguments and the impact they might have on other parties to proceedings.
If late-filed arguments are to be admitted before the EPO, it appears therefore that the chances of success are greater if they are a development of previous arguments, rather than completely new arguments.
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