The Technical Boards of Appeal have also made several Decisions relating to late filed requests in Appeal proceedings. This subject is becoming of more interest as the European Patent Office attempt to prevent parties filing very late requests which are often solely to manipulate the proceedings to their advantage. In T840/93 (the Proctor and Gamble Company / Unilever N.V. et al.), they looked at the purpose of the Boards of Appeal allowing late filed requests. The Technical Board of Appeal indicated that one of the major reasons for allowing such late filed requests was that the European Patent Office was aware that the Appeal proceedings may be the last chance that a Patentee had of maintaining the Patent. In the particular case under consideration, however, they were aware that at least one Divisional Application was still pending. Accordingly, because the Divisional Application was still pending, this was not the last chance for the patentees to attain grant of a Patent on that particular subject matter. The Technical Board of Appeal, therefore, held that the late requests, submitted by the patentee during Oral Proceedings at the Appeal stage, were neither immediately allowable nor bona fide attempts to overcome objections raised and so would be rejected without further consideration.

An equally strong line was taken in the Technical Board of Appeal Decision No. T583/93 (Hymo Corporation / SNF Floerger). In this case, the Patentee attempted to introduce additional sets of claims one day before the Oral Proceedings in the Appeal. The reasoning for this was that these requests were not to overcome particular objections but, rather, were due to the fact that the licensees of the patentees had only just ascertained the commercially important aspects of the invention and, accordingly, wished to file a new set of claims to protect that commercially important aspect of the invention. The Board of Appeal noted that, although the licensee had been a licensee for some four years before the Oral Proceedings, they had not become involved in assessing the scope of the claims until very shortly before the Oral Proceedings. The Board of Appeal indicated that a lack of communication between the licensee and the proprietor was no excuse for the request having been filed late. Accordingly, because there was no good reason for the late filing of these requests, the Board of Appeal refused to admit the request into proceedings. This case, once again, emphasises how important it is to have a very strong reason for admitting requests and documents into both Opposition and Appeal proceedings at a very late stage.

Finally, in Technical Board of Appeal Decision No. T463/45 (Harris Corporation / ABB Management AG, Daimler-Benz Aktiengesellschaft), the Board of Appeal allowed the introduction of amended claims which had been rejected by the Opposition Division as being introduced too late into the Opposition proceedings. The reason for the late introduction into Opposition proceedings was that the Patentee had only just, at that time, become aware of a possible infringement and had amended the claims to ensure that the legal interests of the patentee were protected.

The Technical Board of Appeal emphasised that they could see no reason to doubt the explanation and there was no requirement for the Appellant to file evidence concerning the potential infringement. Given that there was no material difference between the claim under specific attack in the main set and the claim that it replaced, there should have been no reason why the claims should not have been admitted.

Another interesting point in this Decision was that the Opponents had cited, late in proceedings, some post-published U.S. Patents, arguing that these were circumstantial evidence showing that certain features of the claimed invention were available before the priority date of the Patent under attack. In not admitting the documents to proceedings due to late filing, the Board of Appeal made the important comment that, in the eyes of the European Patent Office Boards of Appeal, a U.S. Examiner's opinion on inventive step is of little relevance to the judgement of subject matter of European Patents.

This reinforces the general European Patent Office view, that allowance of a particular case in a country outside the European Patent Organisation is of little or no persuasive value to the European Patent Office when considering the allowance of a corresponding European Patent Application.