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Guidelines for Examination

 
 

8.5 Submissions by the parties

After the introduction referred to above, the party or parties will be allowed the floor in order to put their cases and to make applications on procedural matters and state the grounds thereof. In the normal course of events each party should have only one opportunity of making a comprehensive statement.

In opposition proceedings the opponents will generally speak first and the patent proprietor afterwards. Where there are a number of opponents, it may be expedient to grant the patent proprietor an opportunity of replying directly after the statement of each individual opponent. The opponents and the patent proprietor should be given the opportunity of making a final reply.

The submissions of the party or parties may be prepared in writing, although they should as far as possible be made extemporaneously. Passages from documents already introduced into the proceedings which are referred to again should only be read out where their precise wording is relevant.

Submissions by a person who is not qualified under Art. 133 and 134 to represent parties to proceedings before the EPO may be admitted at oral proceedings when this person accompanies a professional representative representing that party. Such submissions, however, cannot be made as a matter of right, but only with the permission and at the discretion of the Examining or Opposition Division. In opposition proceedings the Division should consider in exercising its discretion whether (see G 4/95):

(i)
the party on behalf of which the person is to speak has filed a request to this effect; 
(ii)
the party making the request has indicated the name of the person, the subject-matter of the submission and the person's qualification to speak on this matter; 
(iii)
the request has been filed sufficiently in advance of the oral proceedings; 
(iv)
in the case of a late-filed request, either there are exceptional circumstances justifying the admission of the submission or all the other parties agree to the making of the submission; and 
(v)
the submissions are made under the continuing responsibility and control of the professional representative. 

If neither of the alternative conditions mentioned under (iv) are met, a late-filed request should be refused. The time limit to be applied when deciding whether a request was late-filed is that fixed in the summons under Rule 116.

If a party is represented by an authorised employee rather than a professional representative, the same considerations apply in respect of a person accompanying the authorised employee. As no other party is affected, Examining Divisions can adopt a more liberal approach than Opposition Divisions.

Parties are not to be considered as accompanying persons in the sense of G 4/95 (see T 621/98). They have the right to make submissions in oral proceedings by virtue of their status as party to the proceedings.

If written submissions are made during oral proceedings, it is the responsibility of the Division to should make sure that the formal requirements such as readability typed-form, signature and dating of the submissions are met (See T 733/99). See also E‑II, 8.7.