Zusammenfassung von EPC2000 Art 116(1) für die Entscheidung T0245/19 vom 27.09.2023

In T 245/19 both appellants had requested oral proceedings in the event the board had not granted their main request. In the board's preliminary opinion communicated to the parties pursuant to Art. 15(1) RPBA 2020, the board expressed its intention to allow the appellants' main request. Later on, both appellants and the respondent announced they would not be attending the oral proceedings, with the appellants explicitly maintaining their request for oral proceedings. The board held that in such a situation, it was not necessary for oral proceedings to be held in order to hear the respondent. According to the board, the reasons for this were as follows. In several decisions of the boards of appeal (e.g. T 3/90, T 696/02, T 1027/03), it had been held that an announcement that a party would not be participating in oral proceedings was equivalent to the withdrawal of that party's request for oral proceedings and that as a consequence there had been no need for oral proceedings to be held. The present board had doubts as to whether a declaration of non-attendance could in fact be construed as a withdrawal of a party's request for oral proceedings, with all legal implications, including that the party was bound thereby. The board referred to J 11/94 in which it had been stated that any procedural declaration must be unambiguous, particularly declarations terminating the proceedings because of the consequences thereof. In the board's view, this also applied to declarations of withdrawal of the request for oral proceedings. Furthermore, in J 19/03, citing decisions J 11/87 and J 27/94, it had been held that a party was normally bound by its procedural acts provided the procedural statement was clear and unconditional. The board was of the opinion that a party's announcement that it would not be appearing at the hearing did not necessarily entail the withdrawal of a previously made request to present their arguments orally. Notwithstanding this, it was not mandatory for oral proceedings to be held in these circumstances. The announcement of a party that it would not be appearing at the hearing resulted in its request for oral proceedings becoming ineffective, irrespective of a declaration that the request for oral proceedings was explicitly maintained. According to the board, the right to oral proceedings enshrined in Art. 116(1) EPC must be seen in the context of the right to be heard under Art. 113(1) EPC (see G 1/21). It was therefore a right to be heard in oral proceedings. The right to oral proceedings could not be understood as the right to have the board hold oral proceedings with the other parties to the proceedings. Such an understanding, which separated the right to oral proceedings from the right to be heard at oral proceedings, had no basis in the EPC as interpreted by the boards of appeal. The board found that once a party's request for oral proceedings became ineffective, the board may dispense with oral proceedings if no other reason made it necessary or desirable to hold them. In the present case, there was no such reason, because the board had decided to allow the appellants' main request, i.e. to maintain the patent as granted, and also because all parties had announced they would not be attending the oral proceedings. The board concluded that the case was ready for decision on the basis of the parties' written submissions, which had been fully taken into account by the board (Art. 12(8) and Art. 15(3) RPBA 2020). Therefore, the board decided not to hold oral proceedings and to issue the decision in writing.