Rule 116(1), being an implementation of Art. 114(2) as a further development on the existing jurisprudence regarding facts or evidence not filed in due time, makes it clear that the examining or opposition division has a discretion to disregard new facts or evidence for the reason that they have been filed after the date indicated in the summons under Rule 116 unless they have to be admitted because the subject of the proceedings has changed.
For instance, if the opposition division states in the annex to the summons that the patent is likely to be revoked, and a timely filed request for amendment is admitted but relates to subject-matter not covered by the claims as granted, the subject of the proceedings has changed. Consequently, new facts and evidence submitted by the opponent in response to these requests will be admitted into the proceedings, even if they arrive after the final date set under Rule 116.
However, if the proprietor's requests relate to amendments based only on claims as granted, new facts and evidence submitted by the opponent will be treated as late-filed even if submitted before the final date, i.e. they will be admitted only if they are prima facie relevant unless there are other aspects militating in favour of admitting them, such as a large number of dependent claims in the patent as granted (E‑VI, 2.1).
Similarly, if in the provisional and non-binding opinion the opposition division reaches the conclusion that maintenance of the patent is not prejudiced by the facts and evidence submitted so far by the opponent, this fact per se does not give the opponent the right to have new facts and evidence admitted into the proceedings, even if submitted before the final date fixed under Rule 116(1).