Abstract on Article 116 EPC for the decision T1523/23 of 13.10.2025

In T 1523/23 the opponent (appellant) requested, as its main request, that the board set aside the decision under appeal and remit the case with the order that the opposition division hold the oral proceedings again, this time in person. The board noted that, under Art. 11 RPBA, it should not remit the case unless special reasons presented themselves for doing so. As a rule, fundamental deficiencies which were apparent in the proceedings before the department whose decision was appealed constituted such special reasons. The opponent alleged an infringement of its right to be heard, which may constitute a fundamental deficiency within the meaning of Art. 111(1) EPC. The opponent's argument in support of its main request rested on the premise that, according to G 1/21, in order to safeguard the right to be heard, oral proceedings were in principle to be held in person. This right could only be safeguarded if a party was denied its wish for in-person oral proceedings for good reasons. Such good reasons, for example travel restrictions, had been absent in the present case. Furthermore, the opponent submitted that the Decision of the President of the EPO dated 22 November 2022 concerning the format of oral proceedings before examining and opposition divisions, the Legal Division and the Receiving Section (OJ 2022, A103; "Decision of the President"), which had made videoconferences the rule for oral proceedings before the opposition divisions and required parties to argue for exceptions, was not in line with the principles established in G 1/21. By relying on the Decision of the President rather than on G 1/21, the opposition division had infringed the opponent's right to be heard. According to the board, there had been no infringement of the opponent’s right to be heard. The board recalled that oral proceedings in the form of a videoconference were oral proceedings within the meaning of Art. 116 EPC (G 1/21). This conclusion had been reached irrespective of any additional conditions. In particular, neither a general emergency, nor travel restrictions, nor the consent of the parties had been regarded as prerequisites. The Enlarged Board had considered that, while suboptimal, oral proceedings by videoconference as such did not impair the right to be heard or the right to fair proceedings. A videoconference was a suitable format for oral proceedings. A violation of the right to be heard may nevertheless occur in individual cases. However, it was clear that the Enlarged Board had not regarded the format of a videoconference as such to constitute a violation of the right to be heard. The board held that it could not discern, and the opponent had not demonstrated, how the opponent's right to be heard had been infringed merely because a format of oral proceedings, which as such complied with Art. 113 and 116 EPC as well as with the right to fair proceedings, had been imposed against its will. No such conclusion could be derived from G 1/21. Accordingly, the board found no infringement of the opponent's right to be heard and consequently no special reasons within the meaning of Art. 11 RPBA to remit the case to the opposition division without reviewing the decision under appeal.