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Case Law of the Boards of Appeal

 
 
2.2.1 Wording constituting a request

In T 19/87 (OJ 1988, 268) the board considered that the request in the applicant's letter for "an interview as a preliminary to oral proceedings" could only be construed as both a request for an interview (which might or might not be granted) and a request for oral proceedings (see also T 283/88).

In T 668/89 the phrase "... applicant's representative claims his right to appear and argue the case orally" was deemed to be a valid request for oral proceedings. In T 494/90 the wording "We request that we be given the opportunity to attend an oral hearing which may be appointed" was accepted as request for oral proceedings in the circumstances of the case.

In the ex parte case T 95/04 the appellant’s request for a telephone call from the examiner was followed by a further request “in any event” for an opportunity to be heard before an adverse decision was taken. In the board’s view, the expression “in any event” implied that, if the examiner was to exercise his discretion and not to communicate further with the applicant, then the applicant wished to have a further opportunity to be heard which under the circumstances could only be provided by appointing oral proceedings.

In T 1829/10 the applicant's response to the examining division's first communication was that a hearing would be "useful" (German: "sachdienlich") if basic concerns regarding patentability persisted. The board of appeal held that the term "hearing" was synonymous with "oral proceedings". Whether or not the formal term "request" was used was immaterial in this context (see also T 263/91). The applicant's use of the expression "sachdienlich" (useful) in a request for oral proceedings, as opposed to a request for interview, did not imply that the examining division had any discretion with respect to its grant.