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Case Law of the Boards of Appeal

 
 
4.2. Notice of two months in the summons

Under R. 115(1), second sentence, EPC (R. 71(1), second sentence, EPC 1973) the notice given in the summons to oral proceedings must be at least two months, unless the parties agree to a shorter period.

In J 14/91 (OJ 1993, 479) the board ruled that a dispute about a third party's right to inspect the application dossier before publication had to be decided promptly (i.e. before publication), otherwise Art. 128(2) EPC 1973 became null and void. If oral proceedings would facilitate a prompt decision, the summons under R. 71(1) EPC 1973 could give shorter notice - even without the other party's agreement - provided the parties were given enough time to prepare. The board referred to Art. 125 EPC 1973 and stated that it was a generally recognised principle of procedural law in the contracting states that notice could be curtailed in urgent cases. The degree of curtailment should be decided on a case-by-case basis.

In T 111/95 the board stated that the examining division had no right simply to set a date for oral proceedings about two weeks after despatch of the summons. The board found that there was nothing on file to establish that the applicants' representative, at any time and unconditionally, accepted the date set. The board thus held that the summons was null and void, as were the actions following and resulting from it.

In T 772/03 the summons to oral proceedings did not comply with the requirement to give at least two months’ notice. The board observed that the onus of proving that an agreement for a shorter notice period was reached lies with the examining division as the party making the claim (following T 111/95). In the case at issue the examining division had failed to prove that an agreement on a shorter notice period had been reached.

In T 601/06 and T 869/06 the boards offered an alternative date within a period of about two months from the date of the request in view of the balance of interests of the parties and the public. It was stated that the period of about two months arose from the fact that, except for when the parties consent, new summons had to be issued at least two months in advance of a hearing, so that dates within the two-month period from the date of the request could not be used for other cases.

According to the board in T 2534/10, R. 115 EPC equally applied where oral proceedings were continued on a date other than that fixed in the summons and that a fresh summons for that date therefore had to be issued.