2.5. Auxiliary request for oral proceedings

There is no requirement in the EPC or in the case law that only unconditional requests to oral proceedings are admissible; it is normal practice to request oral proceedings e.g. only for the eventuality of an imminent adverse decision (T 1136/10, see also T 870/93). According to the established practice of the boards of appeal, a request for oral proceedings on an auxiliary basis is interpreted as a request for oral proceedings unless the board intends to decide the case in favour of this party (see T 3/90, OJ 1992, 737).

In T 344/88 the appellants requested that oral proceedings be held if the opposition division intended to maintain the patent in whole or in part. The opposition division rejected the opposition as inadmissible without appointing oral proceedings. The board found that while it was true that, in rejecting the opposition as inadmissible, no formal decision had been taken to maintain the patent, this was nevertheless the consequence of the decision.

In T 42/90 the board remitted the case to the department of first instance. It held that the patent proprietor was not adversely affected by this decision so that there was no need to grant the auxiliary request for oral proceedings (see also 166/91, T 47/94, T 808/94). In T 924/91 the board explained that in case of a remittal to the department of first instance there was no need to appoint oral proceedings because remittal meant that the decision under appeal was being set aside, and not that the application was being refused.

In T 902/04 the board held that, since the opponent's request was allowed, there was no need to hold the oral proceedings which only the opponent had requested on a purely auxiliary basis.

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