In T 166/04
the examining division had refused the patent application at the end of oral proceedings which the applicant had not attended. In the appellant's opinion, a gross procedural violation had occurred in that the examining division had used a short-term invitation to oral proceedings to introduce five additional prior art documents (D4...D8) in a complex technical field. Instead, the examining division should have issued another communication pursuant to Art. 96(2)
and R. 51(3) EPC 1973
to safeguard the applicant's right to be heard according to Art. 113(1) EPC 1973
. The board noted that the decision under appeal mentioned the prior art documents D4 to D8 only obiter. Those documents, while cited in the summons, had not therefore played a decisive role. However, even if they had formed part of a critical argumentation, the board would not necessarily consider their late introduction through summons as improper. Apart from the non-extendable time limit, the appellant had had an opportunity to respond to the summons in writing as if he had responded to a communication under Art. 96(2) EPC 1973
. He had actually done so by submitting amendments and arguments with his letter dated 27 March 2003, which dealt with all the prior art documents D1 to D8. In addition, the board pointed out that the applicant had decided not to participate in the first-instance oral proceedings in the course of which he could have made further submissions.