T 1589/21 - (I) Evidence of c.g.k. is late-filed

Key points

•  " the appellant submitted that a party must be able to rely, at any stage of the proceedings, on common general knowledge and provide proof for that. This argument implies that a board does not have discretion to disregard documents (allegedly) supporting common general knowledge. However, the board cannot derive any such limitation from the EPC or the RPBA. The documents are evidence supporting allegations of fact which, under Article 114(2) EPC, may be disregarded if not submitted in due time by the party concerned. Article 12(3) and (5) RPBA confirms the board's discretionary power in this respect. The board therefore sees no reason for any preferential treatment of evidence for alleged common general knowledge. This is also in line with e.g. decision T 85/93, OJ EPO 1998, 183 (see also Case Law of the Boards of Appeal of the European Patent Office, 10th edition 2022, V.A.5.13.1(c))."
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EPO 

The link to the decision is provided after the jump, as well as (an extract of) the text of the decision.

https://www.epo.org/law-practice/case-law-appeals/recent/t211589eu1.html

5. In a further line of reasoning, the appellant submitted that a party must be able to rely, at any stage of the proceedings, on common general knowledge and provide proof for that. This argument implies that a board does not have discretion to disregard documents (allegedly) supporting common general knowledge. However, the board cannot derive any such limitation from the EPC or the RPBA. The documents are evidence supporting allegations of fact which, under Article 114(2) EPC, may be disregarded if not submitted in due time by the party concerned. Article 12(3) and (5) RPBA confirms the board's discretionary power in this respect. The board therefore sees no reason for any preferential treatment of evidence for alleged common general knowledge. This is also in line with e.g. decision T 85/93, OJ EPO 1998, 183 (see also Case Law of the Boards of Appeal of the European Patent Office, 10th edition 2022, V.A.5.13.1(c)).

6. In view of the above considerations, none of the reasons submitted by the appellant justified submitting documents D54 and D55 at this late stage of the proceedings. The board therefore decided not to take them into account under Article 13(2) RPBA.