T 1367/09 of 11.12.2013

Oral proceedings - non-attendance of party
Right to be heard - non-attendance at oral proceedings

I. In ex parte appeal proceedings a board has the power to enforce any grounds for refusal of an application, in particular grounds which the examining division did not consider at all or held to be satisfied (G 0010/93). Said grounds will be communicated to the appellant in writing, for example with a communication under Article 15(1) RPBA, and/or orally during scheduled oral proceedings.
The board’s communication, however, has a preliminary character and does not have to be exhaustive. Thus, should the board, when reconsidering a case shortly before the oral proceedings in preparation thereof, identify new grounds for refusal of the application that were not mentioned in its previous communication, said new grounds will have to be discussed during the oral proceedings, the aim of which is not a simple repetition of what was already submitted in writing.
II. In ex parte appeal proceedings, if a duly summoned appellant does not attend the scheduled oral proceedings, the board, in view of the principle of procedural economy, shall not be obliged to delay its decision by reason only of the appellant's absence at the oral proceedings (Article 15(3) RPBA). Due to its absence, the appellant waives the opportunity to present its comments on new grounds which were not mentioned in the communication under Article 15(1) RPBA but are decisive for the decision. In such a case, the board's decision dealing with said new grounds, on which the appellant has not presented its comments, does not contravene the principle of the right to be heard (Article 113(1) EPC 1973).