An EPO board of appeal decided that it had the discretion to admit a late filed document, even though the opposition division had exercised its discretion not to admit the document. In this respect the board diverged from T 2102/08. The board held that it may be confronted with additional facts (submissions) and different circumstances beyond those at the time when the opposition division exercised its discretionary power. The criteria for admission by the board should be the same as for documents that were submitted for the first time in appeal.
A full summary of this case has been published on Kluwer IP Law.
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