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Case Law of the Boards of Appeal

 
 
2.8.2 Interviews

In principle, the refusal of a request for an interview with the examiner concerned does not contravene any of the rules of procedure contained in the Convention. If the applicant requests an interview, the request should be granted unless the examiner believes that no useful purpose would be served by such a discussion (Guidelines C-VII, 1).

In T 98/88 it was held that Art. 116 EPC 1973 gave every party the absolute right to oral proceedings, but not the right to an interview with a particular member of an examining division. It is for the examiner concerned to decide whether such an interview should take place (see also T 589/93). In T 193/93, the board held that examiners were under no obligation to grant an "interview" (T 235/85, T 909/95).

In T 409/87 the board noted that Art. 116 EPC 1973 makes it clear that whether or not the EPO considers it to be expedient, a party is entitled to oral proceedings upon request (see T 299/86, OJ 1988, 88). However, a request for an interview is clearly not, by itself, a request for oral proceedings and there is no obligation upon the examining division to grant such request for an interview when, as set out in the Guidelines, the examiner believes that no useful purpose would be served by such a discussion (see T 19/87, OJ 1988, 268, T 909/95). As an interview, in contrast to oral proceedings, is not a procedural step provided by the Convention, the refusal to grant a request for an interview is not a decision open to appeal and, therefore, does not fall under the provision of R. 68(2), first half-sentence, EPC 1973.

In T 283/88 the board stated that if a request for oral proceedings has been made, such proceedings must therefore be appointed. This is in contrast to a request for an interview before the examining division, in which case the examining division may refuse such a request if it considers that no useful purpose would be served by such a discussion (cf. Guidelines for Examination). As pointed out in the decision in case T 19/87, if there is any doubt in any particular case as to whether or not oral proceedings have been requested, it is clearly desirable as a matter of practice that clarification should be sought from the party concerned.

In T 366/92 the statement that the applicant "would welcome the opportunity to discuss the case with the Examiner at an informal interview ..." did not constitute a request for oral proceedings under Art. 116 EPC 1973.

In T 299/86 (OJ 1988, 88) the board held that the right of a party to request oral proceedings under Art. 116 EPC 1973 was in no way affected by the fact that such party could have also requested and/or attended an interview with the examiner.

In T 808/94 the board stated that informal interviews (also called "personal consultation") and/or informal consultations by telephone which were carried out by the primary examiner alone could not replace duly requested oral proceedings under Art. 116 EPC 1973, which were to take place before all members of the examining division (Art. 18(2) EPC 1973).