T 926/07 – Arguments Are Never Late

[...] According to R 71a EPC 1973, new facts and evidence presented after [the final] date [fixed in the summons for making written submissions in preparation for the oral proceedings (OPs)] need not be considered, unless admitted on the grounds that the subject of the proceedings has changed.

R 71a and A 114(2) EPC 1973, on which it is based, therefore refer to late filed facts and evidence and not to new arguments. The latter may be produced at any stage of the proceedings. [2.1]

Facts are assertions (behauptete Sachverhalte) which may need to be supported by evidence (see Singer/Stauder, EPC, 4th ed., Article 114, point 44). Arguments, on the other hand, are statements (Ausführungen) that result from applying the law to the facts and evidence that have been submitted in time (see T 92/92 [2]). So arguments based on facts submitted in time must be admitted at any stage in opposition or subsequent appeal proceedings. [2.1.1] 

This approach is different from what has been said, for instance, in T 124/87 : “An argument which is presented for the first time at an oral hearing, which combines particular previously filed evidence with a particular previously cited document, may not be admitted for consideration in the exercise of discretion under A 114(2)”. 

To read the whole decision (in German), click here.