Oral proceedings give the applicant an opportunity to exercise his rights under Art. 113(1). In examination proceedings, when an applicant files amended claims before oral proceedings which he subsequently does not attend, he may expect a decision based on objections which might arise against such claims in his absence. A decision can be taken based on facts and arguments presented earlier in the proceedings and/or based on new arguments which may be expected to be raised (see OJ EPO 2008, 471).
In examination proceedings, the summons to oral proceedings should include all the objections that are likely to be discussed during oral proceedings and should indicate that amended claims in response to the communication will have to be examined at the oral proceedings for compliance with the EPC. This ensures that the applicant's right to be heard (Art. 113(1)) is respected and that the proceedings are not delayed unnecessarily if an applicant does not attend oral proceedings.
Where auxiliary requests are filed before the summons to oral proceedings is issued, these requests must be commented on in terms of both admissibility and allowability. However, the reasoning given in the preliminary opinion is to focus on the main request; only a brief indication of the essential reasons for the non-allowability of the subject-matter or the non-admissibility of the auxiliary requests is to be provided. It is to be noted that this brief indication of the essential reasons for not allowing or not admitting the auxiliary requests has to be thorough enough to ensure that the applicant has been informed of the objections raised by the examining division and has thus been given the opportunity to comment on them (see C‑V, 1.1, and C-V, 4.9).