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.

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