T 2036/22 - Excluding admitted evidence

Key points

•  "The board has doubts as to whether, by way of criticising the opposition division's procedural handling of D41, a piece of documentary evidence which was admitted into the proceedings by the opposition division and taken into consideration in substance in the decision under appeal could actually be excluded from the proceedings by the board (for further considerations in this respect, see Article 114(1), Rule 81(1), Rule 84(2) EPC). The approach that on appeal, such an exclusion of evidence admitted or introduced into the proceedings by the opposition division is generally not possible implies that a patent proprietor's legal position in relation to such a new piece of evidence presented during opposition proceedings is that it is to be given, during opposition proceedings, an adequate opportunity to respond to that new evidence (see Article 113(1), Rule 81(3) EPC). "
• As a comment: and if not given by the OD, and that point is raised in appeal, the Board should give it, remitting the case where appropriate.
• Separately: "D41 had been filed before the opposition division prior to the date set according to Rule 116 EPC. Any reaction thereto, e.g. by means of experimental report A048, should have been filed with the statement of grounds of appeal at the latest. No justification has been provided as to why this was not done. The state of the proceedings at which A043 [A048 ?] was submitted thus spoke against admittance."

EPO 

The link to the decision and an extract of it can be found after the jump.

https://www.epo.org/en/boards-of-appeal/decisions/t222036eu1