T 0097/94 (Procedural timetable) of 15.07.1997

1. If, in accordance with decision G 6/95, Rule 71a(1) EPC is not binding on the boards of appeal in the sense that it gives them full scope in the preparation of oral proceedings, it is nevertheless binding on the parties. Thus, when a board of appeal decides to send the parties a communication under Rule 71a(1) EPC, the latter are obliged to comply with it, in particular as far as the final date for reply is concerned (reasons, 3.5.1).

2. If an attorney is replaced at a late stage in the proceedings for reasons other than force majeure, the new representative is obliged to continue the proceedings from the stage they had reached when he took over from his predecessor. This change may not be used by a party, in the present instance a respondent/opponent, as an opportunity to adopt a new defence strategy based on a hearing of witnesses which was unforeseeable in the light of the arguments and requests previously submitted (reasons, 3.5.3).

3. Where public prior use is cited, the assessment of probability which normally underlies the boards' opinion must cede to a stricter criterion close to absolute conviction. In other words, there should be a degree of certainty which is beyond all reasonable doubt (reasons, 5.1).