T 1166/19 - OD admits request filed at 21:30

Key points

• The opponent requests that the main request is not admitted, arguing as follows: “The main request was filed as the then-auxiliary request 2 only at 9:30 p.m. [!] on the first day of the oral proceedings before the Opposition Division. The opponents' request to grant time for searching new documents and to prepare for the new submission was refused. The then-new set of claims was presented in the oral proceedings only at the time that D2a was found novelty-destroying by the Opposition Division. The restriction of the Zn content was not foreseeable for the opposing parties.”
• The Board admits the request. “It is not apparent that the Opposition Division wrongly exercised its discretion to admit the then-auxiliary request 2, now main request. The Opposition Division examined the prima facie relevance of the amendments and concluded that they overcame the lack of novelty over D2a.”
• “According to the minutes, the then-auxiliary request 2 was submitted just before interruption of the proceedings on the evening of the first day. After resumption of the proceedings on the morning of the second day, the opponents were heard on the admissibility of auxiliary request 2. This was followed by deliberation, and admittance of the request. The opponents agreed to discuss all issues with regard to auxiliary request 2 immediately, with the exception of the inventive-step attack, for the preparation of which they "may need time later". When later in the second day the parties were asked to comment on inventive step, the opponents did submit their attacks. When, after deliberation, they were informed that the Opposition Division found the subject-matter inventive, and were asked whether they had any other comments or requests, the opponents did not. It is thus noted that the minutes do not report any request to grant time for a further search or any request for more preparation time when inventive step was discussed, nor did the appellants challenge the content of the minutes. It therefore has to be concluded that the time available to the opponents to react to the newly-submitted request was sufficient. Therefore, according to the evidence on file, the Board cannot establish wrongly-exercised discretion by the Opposition Division, and does not see any reason to disregard the present main request.” (references omitted)
• As a comment, there is definitely an important practice point to be learnt from this decision but I leave that for your own firmwide case law lunch or the like. 
• Please bear in mind that claim 1 at issue is directed to a metal alloy and this is quite a particular type of claim.  The Board finds that in the present case, “Therefore a further restriction of the Zn content [as in AR-2] could and should have been expected.”
• “As mentioned above with respect to the admissibility of the then-auxiliary request 2, no request for adjournment of the oral proceedings was made: according to the minutes, the opposing parties were in a position to react to the amended auxiliary request 2 immediately[]. No justification was given as to why they changed their minds in the appeal proceedings. For these reasons, the Board decides not to admit documents D46 to D48 [submitted by opponents] into the proceedings”
• The Board finds the claims at issue to be novel and inventive and dismisses the appeals of opponents.

T 1166/19 - 

https://www.epo.org/law-practice/case-law-appeals/recent/t191166eu1.html

decision text omitted.