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Under Art. 15(3) and (6) RPBA 2007, the board is not obliged to delay any step in the proceedings, including its decision, by reason only of the absence at the oral proceedings of any party duly summoned; that party may then be treated as relying only on its written case. It must also ensure that each case is ready for decision at the conclusion of the oral proceeding. The explanatory notes to Art. 15(3) RPBA state that this provision does not contradict the principle of the right to be heard pursuant to Art. 113(1) EPC since that Article only affords the opportunity to be heard and, by absenting itself from the oral proceedings, a party gives up that opportunity.
In T 979/02, the appellants confirmed that they would not be attending the oral proceedings two days before they were scheduled to begin. In the afternoon of the same day, they filed an amended set of claims as a "single main request". The board found that, for reasons of procedural economy, it had no choice but to decide on the admissibility of the request on the basis of whether the request documents were clearly admissible prima facie. It concluded that, prima facie, both the description and the claims taken alone revealed a number of formal deficiencies.
In T 602/03 the board held that by filing amended claims shortly (about one month) before the oral proceedings and subsequently not attending these proceedings, the appellant must expect a decision based on objections which might arise against such claims in his absence. After amendment of the claims leading in essence to a version discussed at a previous stage of the procedure, nothing stood in the way of a decision being taken based on the objections and facts previously discussed, even if the decision was taken in oral proceedings held in the absence of the appellant and the amendment was filed in response to the summons to said oral proceedings (T 78/05, T 942/05).
In T 1704/06 the appellant was not represented at the hearing. In view of the requirements of Art. 113(1) EPC, the Board had to consider at the oral proceedings whether it was in a position to decide on this claim, which contained subject-matter not previously present in an independent claim. In the situation where an appellant submits new claims after oral proceedings have been arranged but does not attend these proceedings, a board has a number of different options. It can continue the examination in writing, remit the case, grant a patent, or reject the claims as inadmissible. But it can also refuse the new claims for substantive reasons, specifically lack of inventive step, even if the claims have not been discussed before and were filed in good time before the oral proceedings. This will in particular be the case if an examination of these substantive requirements is to be expected in the light of the prevailing legal and factual situation.
In T 1867/07 the board concurred with this view and added that a duly summoned party who by its own volition is absent at oral proceedings cannot be in a more advantageous position than this party would have been, had it been present. In the case at issue, the appellant had to expect a discussion on the formal and substantive issues of his newly filed set of claims during oral proceedings. The voluntary absence of the appellant cannot be a reason for the board not to raise issues it could have and would have raised had the appellant been present, and to decide accordingly.