The right to be heard under Art. 113(1) EPC requires that those involved be given an opportunity not only to present comments (on the facts and considerations pertinent to the decision) but also to have those comments considered, that is, reviewed with respect to their relevance for the decision on the matter (see R 23/10). The deciding department must demonstrably hear and consider the comments (T 206/10, with further reference to T 763/04, T 246/08; see also T 1709/06, T 645/11). In principle Art. 113(1) EPC guarantees a party’s right to have the relevant grounds fully taken into account in the written decision (R 19/10); this principle is not without limitation, see below point 1.1.2.
The right to be heard is an important procedural right intended to ensure that no party is caught unawares by reasons given in a decision turning down his request on which he has not had the opportunity to comment. A decision which fails to take into account the arguments submitted by a party and which is based on a ground on which the party had had no opportunity to present its comments, contravenes Art. 113(1) EPC and constitutes a substantial procedural violation (see J 7/82, OJ 1982, 391; T 1039/00, T 778/98). When a decision refusing an application is based on several grounds supported by respective arguments and evidence, it is of fundamental importance that the decision as a whole meets the requirements of Art. 113(1) EPC (T 1034/11).
In J 20/85 (OJ 1987, 102) the board pointed out that Art. 113(1) EPC 1973 was of fundamental importance for ensuring a fair procedure between the EPO and a party to proceedings before it, especially when issues of fact arose. A decision against a party to proceedings on such an issue of fact could only properly be made by the EPO after all the evidence on which such decision was to be based had been identified and communicated to the party concerned. Furthermore, in J 3/90 (OJ 1991, 550) the Legal Board of Appeal held that where the EPO had examined the facts, Art. 113(1) EPC 1973 was not complied with unless the parties concerned had been fully informed about the enquiries made and the results and then given sufficient opportunity to present their comments before any decision was issued (see also J 16/04).
The board in T 996/09 held that the right to be heard was a fundamental guarantor for the parties that proceedings before the EPO will be conducted fairly and openly (with further reference to J 20/85 and J 3/90) and is intended to ensure that the parties to the proceedings are not taken by surprise by grounds mentioned in an adverse decision (following T 669/90, T 892/92, T 594/00 and T 343/01; see also T 197/88, T 220/93).
The boards of appeal can examine the facts of the case of their own motion pursuant to Art. 114(1) EPC and verify whether or not Art. 113 EPC has been complied with by the departments of first instance (see e.g. T 186/02).