3.1. Recht auf mündliche Verhandlung im Prüfungs-, Einspruchs- und Beschwerdeverfahren
3.1.2 Recht auf mündliche Verhandlung auch, wenn keine neuen Argumente vorgebracht werden
In T 383/87 wurde hervorgehoben, dass Art. 116 (1) EPÜ jedem Beteiligten das Recht auf eine mündliche Verhandlung garantiert, damit er seine Sache vor der zuständigen Instanz des EPA mündlich vortragen kann. Es kann vorkommen, dass ein Beteiligter der Ansicht ist, seine Sache besser mündlich als schriftlich vortragen zu können, selbst wenn er dabei keine neuen Argumente vorbringt. Es ist dann sein gutes Recht, eine mündliche Verhandlung zu beantragen, ohne befürchten zu müssen, dass ihm dadurch zusätzliche Kosten entstehen, es sei denn, der Antrag auf mündliche Verhandlung stellt einen eindeutigen Rechtsmissbrauch dar. Siehe auch T 125/89 T 318/91, T 1051/92, T 6/98. Das fehlende Vorbringen neuer Punkte in der mündlichen Verhandlung wurde jedoch von der Kammer in T 167/84 (ABl. 1987, 369) berücksichtigt, um eine Entscheidung über die Kostenverteilung zu fällen. Zur Kostenverteilung s. Kapitel III.R.2.2. "Handlungen oder Unterlassungen, die die rechtzeitige und effiziente Durchführung der mündlichen Verhandlung beeinträchtigen".
- R 0016/23
The petition in R 16/23 concerned decision J 6/22 with which the Legal Board of Appeal (the "Legal Board") rejected the petitioner's request for re-establishment of rights and rejected the appeal as inadmissible. The petitioner argued that the Legal Board had failed, contrary to Art. 116 EPC, to arrange for the holding of oral proceedings requested by the petitioner, which represented a fundamental procedural defect within the meaning of Art. 112a(2)(d) EPC and R. 104(a) EPC. Furthermore, the decision was based on grounds or evidence on which the petitioner had not had any opportunity to comment, representing a fundamental violation of Art. 113(1) EPC within the meaning of Art. 112a(2)(c) EPC. The petitioner submitted, inter alia, that the conclusions in the decision under review that procedural economy had been a justification for denying the petitioner's right to an oral hearing were contrary to the established case law of the Boards of Appeal.
The Enlarged Board of Appeal (the "EBA") as composed under R. 109(2)(b) EPC held that, according to the wording of Art. 116 EPC, the aspect of expediency referred only to the first alternative, where oral proceedings take place at the EPO's own initiative. Thus, the department concerned with a request for oral proceedings made by a party to the proceedings had no discretion over whether oral proceedings take place.
The EBA also recalled that the right to request oral proceedings included the right for the party requesting them merely to present orally what it had already submitted in writing (see R 3/10). It held that Art. 116(1) EPC, taking into account the purpose of this provision, was thus intended to ensure that a party was entitled, upon request, to make oral submissions prior to a decision which adversely affected that party.
The EBA agreed with the decision under review in that the case law of the Boards of Appeal had established that, in specific situations which may be considered as covered by the wording of Art. 116(1) EPC, a decision taken without prior oral proceedings despite a request for oral proceeding having been made could be considered as not being in conflict with that provision. It found, however, that the situation underlying the decision under review did not fall under any of the categories established in the case law.
Furthermore, the EBA saw no indication that a dynamic interpretation could lead to the conclusion that Art. 116(1) EPC left room for weighing up, on the one hand, the petitioner's right to present the case orally before the adverse decision had been taken and, on the other hand, aspects relating to the expeditious conduct of the appeal proceedings, legal certainty or the prospects of success of the petitioner's appeal, or to a conclusion that the Legal Board had not been obliged to arrange for the holding of oral proceedings requested by the petitioner. The EBA was not persuaded that the considerations relied upon in the decision under review could lead to the result that the requested oral proceedings had not been mandatory under Art. 116(1) EPC, nor that the petitioner's right to oral proceedings could be balanced against considerations relating to the requirement of timely legal certainty or procedural economy.
The EBA concluded that the Legal Board's failure to arrange for the holding of the oral proceedings had been contrary to Art. 116 EPC and, in view of this, a fundamental procedural defect under Art. 112a(2)(d) EPC had occurred.
According to the EBA, in the case underlying the petition for review, the issues in relation to which oral proceedings had been requested and the final decision had been linked. Hence, the procedural defect of not arranging for the holding of oral proceedings, contrary to Art. 116 EPC, had been a fundamental one within the meaning of Art. 112a(2)(d) EPC in conjunction with R. 104(a) EPC. To arrive at this conclusion, the EBA, in particular, did not have to additionally assess whether the outcome of the decision under review could or would have been different if the procedural defect of not arranging for the holding of oral proceedings had not occurred. According to the EBA, this approach was in line with the case law of the Boards of Appeal, including the EBA (R 3/10).
As a fundamental procedural defect under Art. 112a(2)(d) EPC in conjunction with R. 104(a) EPC had been established, the petition for review was considered allowable. According to the EBA the further ground for the petition (fundamental violation of Art. 113(1) EPC) did not need to be addressed. The decision under review was set aside and the proceedings before the board re-opened.