2.3.3 Non-attendance at oral proceedings before the boards of appeal - Article 15(3) RPBA

The introduction of Art. 11(3) RPBA 2003 (now Art. 15(3) RPBA) superseded the findings of G 4/92 for the non-attendance at the oral proceedings before the boards (T 706/00). For cases in which the applicant files amended claims in appeal proceedings after the oral proceedings have been arranged and then does not attend them, see Chapter IV.E.4.2.3 c).

The appellant can reasonably expect that during the oral proceedings the board will consider the objections and issues raised in its communication. By not attending the oral proceedings, the appellant effectively chooses not to avail itself of the opportunity to present its observations and counter-arguments orally but instead to rely on its written case (Art. 15(3) RPBA; see e.g. ex parte cases J 15/10, T 1625/06, T 628/07; see also T 55/91).

In the ex parte proceedings T 991/07 the board decided, with reference to Art. 15(3) and 12(2) RPBA, that it could base its decision on objections which would be new to the appellant, but which could not be communicated to it due to the fact that the appellant was not present at the oral proceedings before the board, without infringing the appellant's right to be heard (Art. 113(1) EPC). The board observed that in line with established case law (cf. e.g. decisions T 823/04 and T 1059/04; see also T 1704/06, T 532/09, T 1278/10 - all ex parte cases), the appellant who decided not to attend oral proceedings had nonetheless had the opportunity to do so and that the requirements of Art. 113 EPC were thus met. A further justification for such approach was that a party who filed substantive amendments to its case and then deliberately absented itself from oral proceedings in order to avoid any adverse decision being reached would infringe the general principle that it is incumbent on both the EPO and users of the European patent system who are parties to proceedings before it to act in good faith (G 2/97). This was especially true in situations where the appellant had initially requested that oral proceedings be held.

In the inter partes case T 986/00 (OJ 2003, 554), the board held, with reference to Art. 113(2) EPC and Art. 11(3) RPBA 2003 (Art. 15(3) RPBA), that a patent proprietor who chose not to be represented at oral proceedings should ensure that he has filed all the amendments he wishes to be considered before the oral proceedings. According to the board, this was all the more so in the case at issue, since the proprietor had been expressly warned about the possible necessity of amending the claims and the description.

In T 1000/03 (ex parte) the board held that the appellant had been duly summoned, and at the oral proceedings could easily have corrected the minor deficiencies in the description. To delay the decision pending their correction was uncalled for (see Art. 11(3) RPBA 2003, Art. 15(3) RPBA). Under Art. 113(2) EPC, the board had to keep to the text submitted by the appellant/applicant, who by not appearing at the oral proceedings had taken the risk of the application being refused even for easily remediable deficiencies (see also the ex parte case T 1903/06).

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