8.10. Niederschrift der mündlichen Verhandlung (Regel 124 EPÜ)

In the course of the written proceedings before the board in T 744/23, the respondent (opponent) had requested, inter alia, that the oral proceedings be conducted in person. In its communication pursuant to Art. 15(1) RPBA the board had taken note thereof and had added that it would, however, be appropriate to hold the oral proceedings by videoconference pursuant to Art. 15a RPBA, as this would be the most sustainable format, and no particular reasons had been put forward nor had any been apparent, as to why this would not be appropriate in the present case.

Oral proceedings had been held by videoconference. Four weeks later, the respondent had submitted a request for correction of the minutes of the oral proceedings. The respondent had asked for text passages to be inserted dealing with its request to hold the oral proceedings in person. Referring to R. 124(1) EPC, the respondent argued that the requests of the parties without doubt represented "essentials of the oral proceedings" in the sense of this provision. It was therefore indispensable that the minutes summarise each of the requests brought forward by a party in the course of the procedure and elaborated on during the oral proceedings. Furthermore, it noted that the technical issues, which had affected the access of the board to the internet and, thus, the videoconference facility and required an interruption of the oral proceedings, underlined why a hearing in person had been mentioned as the optimum format and the "gold standard" in G 1/21.

The board rejected the respondent's request for correction of the minutes of the oral proceedings. It recalled that minutes of oral proceedings must contain, inter alia, the essentials of the oral proceedings and the relevant statements of the parties (R. 124(1) EPC). According to the jurisprudence of the boards of appeal, these essentials of the oral proceedings or the relevant statements of the parties were to be determined with a view to what the board may have to decide on (e.g. T 966/99, T 263/05, T 262/17, T 1891/20). This also applied to statements disposing of the subject-matter of the appeal proceedings or parts thereof. However, the minutes did not have to contain the complete arguments of the parties (e.g. T 118/20 and T 1891/20). All the more so, the minutes may not contain arguments or statements of the parties which they considered to be (only) of use in subsequent proceedings before national courts or the Unified Patent Court and which had no bearing on the decision of the board (T 966/99, T 263/05, T 262/17).

The board stated that the format of the oral proceedings was an ancillary question which was regularly not to be dealt with in the order of a (substantive) decision. The choice of format was a discretionary procedural decision (G 1/21, R 12/22) which had to be made ex officio in advance, in accordance with the criteria of Art. 15a(1) RPBA ("appropriateness"). It therefore did not concern, in itself, the essentials of the oral proceedings, nor were the statements made in the oral proceedings, which related to their format as such, relevant statements within the meaning of R. 124(1) EPC.

The board noted that the oral proceedings in this case had been affected by a general network failure on the EPO premises and that this was already reflected in the minutes. However, the discussions which the respondent also wished to have included in the minutes related solely to the format of the oral proceedings, and to its request for in-person oral proceedings, which it had made in writing before, and which had already been addressed in the board's communication. The board concluded that, contrary to the respondent's contention, not all "requests of the parties without doubt represent 'essentials of the oral proceedings'" to be included in the minutes by default, but only under the requirements as also outlined above (e.g. T 1891/20). In particular, the request concerning the format of the oral proceedings and the related discussions, which the respondent wished to have reflected in the minutes, did not fulfil these requirements. There was no connection between the technical issues caused by the network failure during the oral proceedings and these discussions. Likewise, these technical issues had not, in retrospect, made the respondent's request and the discussions on the format of the oral proceedings essential.