T 0034/90 (Viscosity reduction) 15-10-1991
1. Appeal proceedings are wholly separate and independent from the first instance proceedings. Their function is to give a judicial decision upon the correctness of a separate earlier decision of the first instance department.
2. Therefore, even if a representative had lawfully used an alternative official language in the oral proceedings before the first instance, he has to file a new notice pursuant to Rule 2(1) EPC for the appeal proceedings.
2. Procedural issue concerning the language of the oral proceedings
Rule 2(1) EPC provides that: "Any party to oral proceedings before the European Patent Office may in lieu of the language of the proceedings, use one of the other official languages of the European Patent Office, on condition either that such party gives notice to the European Patent Office at least one month before the date laid down for such oral proceedings or makes provision for interpreting into the language of the proceedings...". Not having given the above-required notice, the Respondent also failed to provide interpretation which, as the Appellant's representative categorically stated, would have been necessary in the circumstances. The Respondent's representative submitted that because he had lawfully used an alternative official language in the oral proceedings before the Opposition Division, he should be allowed to use the same language in the hearing before the Board. Although not stated by him in clear terms, this submission clearly implied that the appeal proceedings were no more than a continuation of the first instance, in this case the opposition proceedings. The Board wishes to reiterate the well established principle laid down in numerous cases in this and in other Boards of Appeal, that appeal proceedings are definitely not and were never intended to be the mere continuation of first instance proceedings. Rather, their function is to give a judicial decision upon the correctness of a separate earlier decision given by the first instance department. It follows that, for the purpose of deciding the permissibility of the use of an alternative official language under Rule 2(1) EPC, as well as for other procedural purposes, appeal proceedings are wholly separate and independent from first instance proceedings.
Accordingly, the Respondent's attempt to use an alternative official language, without fulfilling the requirements of Rule 2(1) EPC as they apply to these proceedings, is rejected. ...