Zusammenfassung von EPC2000 Art 116(1) für die Entscheidung T2024/21 vom 30.10.2023

In T 2024/21 the appellant submitted that it had been deprived of its right to oral proceedings during the examination procedure. The board recalled that according to established case law the right to an oral hearing was an extremely important procedural right which the EPO should take all reasonable steps to safeguard (e.g. T 668/89). This provision was mandatory and left no room for discretion (e.g. T 283/88), i.e. parties had an absolute right to oral proceedings. Considerations such as the speedy conduct of the proceedings, equity or procedural economy could not take precedence over this right. The board noted in passing that a discussion of the recent decision J 6/22 did not appear necessary in the context of the present case, as this decision endorsed a restrictive interpretation of the right to oral proceedings for very specific procedural circumstances. However, a dynamic interpretation restricting explicitly regulated procedural rights of the parties did not seem to be considered in J 6/22 for the central area of the European grant procedure. The board was of the view that the reasoning contained in the contested examining division's decision (by reference to the communication of 25 January 2021) was thus based on a manifestly incorrect understanding of the right to oral proceedings as enshrined in the EPC. None of the following were reasons not to comply with the appellant's repeatedly expressed wish to hold oral proceedings: (i) the fact that oral proceedings caused costs, (ii) the reminder in the contested decision of the applicant's duty to submit an EPC-compliant version of the application documents, or (iii) the repeated indication in the examination division's communications that amendments would not be admitted to the proceedings or had not been admitted under R. 137(3) EPC, so that no version of the application documents approved by the applicant would exist in the proceedings. In the present case the appellant had requested oral proceedings for the first time in its reply to the European Search Opinion. This request had been later on repeated in particular for the discussion of the objections under Art. 84 and 123(2) EPC. However, instead of summoning to oral proceedings, the examining division had elaborated on the objections under Art. 84 and 123(2) EPC. According to the board, the examining division's approach of informing the applicant at that stage of the proceedings that it had denied approval of the amended documents of the patent application under R. 137(3) EPC and that there had therefore been no valid text to which the applicant had given its consent under Art. 113(2) EPC constituted a substantial procedural violation. Due to its valid request for oral proceedings the appellant had had the right to be heard in oral proceedings at least on the topic of admittance of the amended application documents under R. 137(3) EPC. Since the examining division had based its non-admittance of the amended application documents on the failure to overcome objections raised under Art. 84 and 123(2) EPC, the appellant would thus also have had to be heard at the oral proceedings on the question of whether these objections had been overcome. The board stated that it was evident from the further course of the proceedings that this procedural deficiency had adversely affected the entire further proceedings. The board concluded that the examining division's continual refusal to appoint oral proceedings and indeed its explanation for not doing so, had made it evident that the appellant had been left with no realistic possibility to have its request for oral proceedings met. Thus, maintenance of the request for oral proceedings had clearly been rendered futile. The board thus considered that withdrawal of the request for oral proceedings under these particular circumstances had not therefore absolved the examining division from its duty to hold the originally requested oral proceedings. In view of the overall course of the examination proceedings it was to be noted that although the appellant had ultimately withdrawn its request for oral proceedings and requested a decision on the state of the file, it had been deprived of its right to be heard in oral proceedings as enshrined in Art. 113(1) and 116(1) EPC. Due to this substantial procedural violation, the contested decision had to be set aside, the appeal fee reimbursed (R. 103(1)(a) EPC) and the case remitted to the examining division for further prosecution (Art. 11 RPBA 2020).