2.2.4 Right to be heard 

Generally, the parties must be heard before the division decides on whether or not to admit late-filed submissions.

For instance, if the opponent introduces a new ground for opposition during oral proceedings, they must always be granted the right to be heard, even where the arguments concern a late-filed ground for opposition and new arguments and evidence related to it. This means that the division must give the parties the opportunity to put forward arguments and duly consider them before deciding on the admissibility of the new ground. Similarly, where the opponent files pertinent new material, the patent proprietor must be given a chance to present comments and submit amendments. If the opposition division approves the introduction of new facts or evidence and if the other parties have not had sufficient time to study them, it grants, where easily comprehensible subject-matter is involved, the parties an opportunity to familiarise themselves with it, possibly by briefly interrupting the oral proceedings. If this is not feasible, the other parties must, upon request, be given the opportunity to comment in the proceedings subsequent to the oral proceedings, where appropriate in a further set of oral proceedings. Where possible, however, oral proceedings will not be adjourned.

Where possible, legal commentaries, decisions (of a board of appeal, for example) and reports on legal decisions which are to be referred to in oral proceedings must be notified to the opposition division and the other parties in good time before the proceedings. They may, however, be quoted or submitted for the first time in the oral proceedings themselves if the opposition division agrees after consulting the parties.

The reasons for the decision on the admissibility of late-filed facts, evidence and requests have to be provided in the written decision and must not come as a surprise. A mere reference to the division's discretionary power is not sufficient (E‑X, 2.10). In examination proceedings, reasons only need to be provided if the late-filed facts, evidence or requests are not admitted.