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Case Law of the Boards of Appeal

 
 
c)
No right to telephone conversation 

As a matter of principle, the EPC foresees the absolute right to oral proceedings under Art. 116(1) EPC, but not the right to a telephone interview or an informal telephone consultation. This applies to the procedure before the examining division (see T 98/88 and Chapter IV.B.2.8.), as well as to the proceedings before the boards of appeal (see T 552/06, T 263/07, T 1984/07).

In T 552/06 the board held that a board was not required to contact the appellant by holding a telephone interview, for instance with the rapporteur, either after receipt of the response to the summons, in which the appellant had indicated his wish for a discussion with the board, or on the day of the oral proceedings.

In T 263/07 the appellant had requested that the rapporteur of the board telephone the appellant's representative to discuss the case so that the oral proceedings could possibly be cancelled. The board held that it was important that the same case was presented to all the board's members. For one of the board's members to be privy to evidence or arguments not available to the other members would be a breach of the principle of collective decision-making and in conflict with Art. 21 EPC 1973 (see T 1109/02). Since the requested telephone interview could have led the rapporteur to take a position on an issue where a collective decision would have been required, or to commit the board without preliminary discussion, the request was refused. See also T 653/08 and T 1251/08.

In T 1984/07 the board did not rule out that there may be circumstances in which a telephone call may be appropriate: for example, if only minor objections remain which could be easily attended to by straightforward amendments. However, in the case at issue, the objections were of such nature that any further amendments were likely to entail more than just a simple modification to the wording of the claims or a straightforward adaptation of the description.