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Case Law of the Boards of Appeal

 
 
6.1. Closure of the substantive debate

The EPC does not prescribe when the substantive debate should be regarded as closed. Particularly if oral proceedings take place but end without a decision being delivered, it has often had to be decided whether or not subsequently filed documents should be taken into consideration. A distinction needs to be made between the following situations:

(i) the board does not announce its decision at the end of the oral proceedings, but reserves the right to deliver its decision subsequently in writing, but without explicitly stating that the debate is closed;

(ii) the board declares at the end of the oral proceedings that the debate is closed and announces that the decision will follow in writing.

In the first case, the boards have generally found that submissions filed after the oral proceedings were out of time and could be considered only if they were relevant (Art. 114(2) EPC 1973). See, for example, T 456/90 and T 253/92.

In the second case, two solutions have been adopted by the boards. One - adopted in T 762/90 - consists of stating under "Summary of facts and submissions" that a document was filed after closure of the debate and that the board would not consider it. Under this option, the document was automatically excluded from the file. This solution was also adopted in T 411/91.

The other solution - adopted in T 595/90 (OJ 1994, 695) - is to rule that submissions filed after closure of the debate could not be taken into account unless the board decided to reopen the debate. Under this option the submission had by implication to be examined.

In T 1629/06, the day before the oral proceedings, the appellant announced its intention not to attend the oral proceedings and requested, without reasons, that the procedure be continued in writing. The board dismissed the request.