T 0446/92 (DIR-hydroquinones/FUJI) of 28.03.1995

Inventive step - yes (after amendment) - secondary indicia - one-way-street situation - presence of an additional effect not established for all alternatives comprised by the original claims
Right to be heard - communication pursuant to R. 58(4) - no need to send a communication under Rule 58(4) if a party has decided not to be represented at oral proceedings

Where an Opponent, who has been duly summoned, is not represented at oral proceedings before a Board of Appeal, the decision of the Board to maintain the patent in suit in amended form in accordance with a request of the Patentee, submitted during these oral proceedings, may nevertheless be given orally pursuant to Rule 68(1) EPC at the end of these oral proceedings if there are no new facts or evidence dealt with during these oral proceedings (cf. opinion G 0004/92 of the Enlarged Board of Appeal; OJ EPO 1994, 149). Under these circumstances, the application of Rule 58(4) EPC may be dispensed with because the patent in suit is maintained with an unamended text emanating from and approved by the patentee and, furthermore, because the Opponent's deliberate decision to refrain from being represented at oral proceedings before the Board is to be regarded as being tantamount to a tacit abandoning of his right to present comments pursuant to Article 113(1) and Rule (4) EPC (point 6 of the reasons).