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Case Law of the Boards of Appeal

 
 
B. Right to be heard

 

  

Art. 113 EPC is the general provision that provides for the right to be heard in the proceedings before the EPO. Under Art. 113(1) EPC the decisions of the EPO may only be based on grounds or evidence on which the parties concerned have had an opportunity to present their comments. The right to be heard under Art. 113(1) EPC is a fundamental principle of the proceedings before the EPO (J 13/10); it is of fundamental importance for ensuring a fair procedure between the EPO and a party to proceedings before it (J 20/85, OJ 1987, 102; G 4/92, OJ 1994, 149).

Under Art. 113(2) EPC the EPO may consider and decide upon the European patent application or the European patent only in the text submitted to it, or agreed, by the applicant for or proprietor of the patent (see below point 3). Art. 113(2) EPC enshrines a fundamental procedural principle which is also part of the right to be heard (T 647/93, OJ 1995, 132).

If a board of appeal identifies a violation of the right to be heard, the consequences may be a remittal of the case to the department of first instance (if the violation of the right to be heard amounts to a fundamental deficiency within the meaning of Art. 11 RPBA, and no special reasons present themselves for not remitting the case; see Chapter IV.E.7.4.) and/or the reimbursement of the appeal fee (if a substantial procedural violation has occurred, R. 103(1)(a) EPC; see Chapter IV.E.8.3.3).

A party to appeal proceedings may file a petition for review of the board of appeal's decision to the Enlarged Board of Appeal on the ground that a fundamental violation of Art. 113 EPC occurred (Art. 112a(2)(c) EPC; see Chapter IV.E.9.2.9). See also the ground under R. 104(b) EPC (see Chapter IV.E.9.2.10, Any other fundamental procedural defect (Art. 112a(2)(d) EPC)), which represents a particular form of the right to be heard (R 21/11).

The right to be heard is closely associated with the right to oral proceedings, in particular when new claims and documents are introduced during oral proceedings and when parties decide not to appear at the oral proceedings (see below point 2).

The right to be heard also plays an important role in other areas of the proceedings before the EPO. For the right to be heard in examination proceedings, see Chapter IV.B.2. In particular, Chapter IV.B.2.4 discusses in detail the case law concerning the specific aspects of the right to be heard which arise in examination proceedings where a patent application is refused following a single communication without a further invitation to submit comments; for the issue of a further communication in examination proceedings, see Chapter IV.B.2.7. In opposition proceedings the right to be heard is inextricably linked to the principle of equal treatment, see Chapter IV.D.5.4.; as to the opposition division's obligation to invite the parties as often as necessary to file observations see Chapter IV.D.5.4.2; as to the opportunity to comment on new grounds of opposition, see Chapter IV.D.5.3.6. For further explanations as to the observance of the right to be heard in the context of the taking of evidence, see Chapter III.G.3.3. The right to be heard may also play a role in the decision whether to accept late filed submissions (see Chapter IV.C.1.).