1.1.2 Limits

The Enlarged Board of Appeal has repeatedly held in its decisions on petitions for review that the parties were not entitled to be informed by the board of appeal in detail, before its decision, of all the foreseeable grounds set out in the reasons for that decision (R 1/08, R 3/09, R 8/09, R 12/09, R 13/09, R 15/09, R 18/09, R 15/10, R 22/10, R 16/11; see also T 1634/10). The right to be heard is also satisfied if the party is aware of, and thus has had the possibility to comment on, arguments of the other party on which the decision is based (R 6/11, see also R 2/08 and R 4/08).

Though Art. 113(1) EPC guarantees in principle a party’s right to have the relevant grounds fully taken into account in the written decision, this principle is not without any limitation. Provided that the reasons given enable the parties concerned to understand whether the decision was justified or not, the deciding organ is under no obligation to address each and every argument presented by the party concerned (R 19/10, R 17/11, T 1557/07, T 1898/11). According to T 1898/11 a “relevant ground” in this context is an argument by a party which raises reasonable doubts as to the legal or factual basis underlying the reasons for the decision. Such an argument must be dealt with, if the parties are to understand the justification of the decision. According to R 13/12 (citing R 21/10) the boards have an obligation to discuss in their decisions issues and arguments to the extent that they are relevant for the decision and may disregard irrelevant arguments. The boards are not obliged to use specific words or the same wording as the parties and it must be accepted that refutation of arguments may be implicitly inferred from the particular reasoning held by the boards.

In T 238/94 the board considered that, although the opposition division's decision indeed contained no direct reference to the appellants' submissions concerning lack of inventive step, the opposition division had considered in its decision the disclosures of all the documents cited by the appellants and respondents, and also the possible combinations of their teachings. Thus, in the board's view, the appellants' submissions had actually been taken into account, albeit indirectly, in the process of arriving at the contested decision (see also T 1004/96).

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