4.4. Right to have comments considered

The right to be heard under Art. 113(1) EPC is not just a right to present comments but also to have those comments duly considered (see, e.g. J 7/82, OJ 1982, 391; T 508/01, T 763/04, T 1123/04 and T 246/08).

The comments presented must be considered in the ensuing decision (J 7/82, OJ 1982, 391 and T 246/08). A decision must show that all potentially refutative arguments adduced by a party are actually refutable. Failure to take into due account a potentially refutative argument of the applicant when deciding the case deprived the applicant of its right to be heard in contravention of Art. 113(1) EPC and amounted to a substantial procedural violation (T 246/08).

On inadequate reasons given in the decision at first instance, and the circumstances in which reimbursement of the appeal fee is justified, see Chapter IV.E.8.3.4.

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