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Case Law of the Boards of Appeal

 
 
8.3.3 Right to be heard

The right to be heard is an important procedural right intended to ensure that no party is caught unawares by reasons given in a decision turning down his request on which he has not had the opportunity to comment. A decision which fails to take into account the arguments submitted by a party and which is based on a ground on which the party had had no opportunity to present its comments, contravenes Art. 113(1) EPC and constitutes a substantial procedural violation, see among many other cases J 7/82 (OJ 1982, 391); J 14/82 (OJ 1983, 121), T 197/88 (OJ 1989, 412), T 716/89 (OJ 1992, 132), T 197/91, T 640/91 (OJ 1994, 918), T 734/91, T 880/91, T 392/92, T 892/92 (OJ 1994, 664), T 951/92 (OJ 1996, 53), T 1045/92, T 1101/92, T 220/93, T 479/94, T 778/98, T 594/00 and T 1039/00. Other violations of Art. 113(1) EPC may also constitute a substantial procedural violation, see the various cases listed in Chapter III.B.1. and 2. For a case in which the board found a violation of the right to be heard but held that a reimbursement was not equitable, see T 433/08 (see point 8.5.1, Causal link between substantial procedural violation and filing of appeal).

The infringement of Art. 113(2) EPC has, in principle, also to be considered to be a substantial procedural violation justifying the reimbursement of the appeal fee (see T 647/93, OJ 1995, 132; see also T 32/82 and J 19/84), for example when the final requests were not clarified (T 666/90, T 552/97, T 1439/05, T 382/10) or when the opposition division overlooked amended claims presented in a submission T 543/92 and T 89/94). See Chapter III.B.3.