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Guidelines for Examination

 
 
8.3.3.1
General 

If an absent party was not duly summoned, this is noted in the minutes and the oral proceedings are closed. A new date must be fixed for further oral proceedings.

If a party who has been duly summoned to oral proceedings does not appear as summoned, the oral proceedings may be conducted without him, since a party should not be able to delay issuance of a decision by failing to appear. This applies also in case of an explicit withdrawal of the request for oral proceedings or if a party has indicated that he will not attend (which is normally interpreted as equivalent to a withdrawal (see T 3/90, T 696/02 and T 1027/03)).

If the Division decides that oral proceedings are nevertheless to be conducted, this means that there are objections still outstanding that need to be discussed at the oral proceedings. Consequently the applicant and/or patentee can expect that problems relating to the requests filed in reply to the summons to oral proceedings will be dealt with at the oral proceedings.

If the applicant and/or patentee decides not to attend the oral proceedings, he is thereby choosing not to make use of the opportunity to comment at the oral proceedings on any of the objections, but to rely on the arguments as set out in the written submissions. The decision may be given orally in his absence. The procedural principles require that the party to the proceedings is not taken by surprise by the decision.

It is to be noted that if a party appears before the end of the oral proceedings, he has the right to be heard.

If the party appears only after the proceedings have been closed, the Division may reopen them at its discretion, subject to two conditions:

(a)
the Division has not pronounced a decision under Art. 97(1) or (2) or Art. 101(2) or an interlocutory decision under Art. 106(2) maintaining the patent in amended form according to Art. 101(3) (see also D-VI, 7.2.2) or a decision to reject the request for limitation under Rule 95(4).
(b)
all parties to the proceedings agree to the reopening. 

If, however, an allowable request for the postponement of oral proceedings has been filed (see E-II, 7), the proceedings should be postponed and a new date fixed. If the filing of the request was delayed due to the carelessness of the party concerned, the proceedings may, depending on the circumstances, still be postponed; if this happens in opposition proceedings, a decision on the apportionment of costs may have to be taken (see D-IX, 1.4).