SONN Patentanwälte – IP Attorneys

EPO case law: Late-filed facts may be inadmissible

New arguments, which are submitted at a late stage, shall in principle be admitted into the proceedings (in confirmation of decision T 1914/12). However, the board has the discretion not to admit late-filed objections under Art 114(2) EPC if these objections are based on new allegations of fact (even if these facts result, for example, from the originally filed application). A new interpretation of a term in a claim is also regarded as a new allegation of fact, because in this context the question of fact of how the skilled person would interpret a passage of the originally filed patent application cited for the first time in the oral proceedings would have to be discussed (EPO BoA 3 December 2019, T 1875/15).