T 0556/95 (Undeniable systems) vom 08.08.1996

The conditions for amendment of an application laid down in Article 123(1) EPC in conjunction with Rule 86(3) EPC remain applicable so long as the Examining Division retains competence over the application, including after the issue of a communication under Rule 51(6) EPC, and until the decision to refuse or grant the application is taken (cf. G 7/93).

The right to be heard at oral proceedings under Article 116(1) EPC subsists so long as proceedings are pending before the EPO, and a request for oral proceedings must be granted (ie oral proceedings must be appointed) before any request of a party (whether procedural or substantive) is decided against that party so as to cause them a loss of rights. This applies also in the case of a request for oral proceedings to discuss amendments submitted after the issue of a communication under Rule 51(6) EPC. The discretion of the Examining Division under Rule 86(3) EPC must be exercised in such circumstances having regard to Article 116(1) EPC. The Enlarged Board has no power to limit the application of Article 116(1) EPC by means of any guidance it may lay down as to how an Examining Division should exercise its discretion under Rule 86(3) EPC.