4.3. Communication under Article 15(1) RPBA

Art. 15(1) RPBA (Art. 11(1) RPBA 2003) reads as follows: "If oral proceedings are to take place, the board may send a communication drawing attention to matters which seem to be of special significance, or to the fact that questions appeal no longer to be contentious, or containing other observations that may help concentration on essentials during the oral proceedings." The earlier provision (Art. 11(2) RPBA 1980) required that the communication be sent together with the summons to oral proceedings. The case law on Art. 11(2) RPBA 1980 appears to remain applicable in all other respects.

In T 614/89 the board held that a communication in accordance with Art. 11(2) RPBA 1980 was by no means binding. It was a snapshot, intended to clear up certain points of controversy in advance and accelerate the proceedings, as well as to encourage the parties to come up with further and sounder arguments in order to provide a reliable basis for the decision.

In G 6/95 (OJ 1996, 649) the Enlarged Board held that the boards continued to have discretion as to whether or not to send a communication when issuing a summons to oral proceedings, as provided for in Art. 11(2) RPBA 1980, since the then newly introduced R. 71a(1) EPC 1973 (now R. 116(1) EPC) did not apply to the boards of appeal. The mandatory procedural requirements of R. 71a(1) EPC 1973 applied to the EPO's departments of first instance but not to the boards, because the Administrative Council could not amend the Implementing Regulations in such a way that the effect of an amended rule was in conflict with the RPBA - adopted under Art. 23(4) EPC 1973 by the Presidium of the boards of appeal and approved by the Council as reflecting the boards' independence.

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