T 0628/95 (Decision without oral proceedings) 13-05-1996
Body activity controlled heart pacer
BIOTRONIK Mess- und Therapiegeräte GmbH & Co Ingenieurbüro
Request for oral proceedings before Opposition Division by opponent
Decision to reject opposition issued without oral proceedings
Decision null and void
Case remitted to first instance for further prosecution before different Opposition Division
I. An opposition was filed on 10 August 1994 against European patent No. 0 317 985, and the grounds were contested by the proprietor in a letter dated 12 January 1995. The opponent filed a letter on 13 April 1995 in reply, in which inter alia oral proceedings were requested if his request for revocation of the patent was not to be granted on the basis of the written submissions ("on an auxiliary basis").
II. The Opposition Division issued a decision dated 16 May 1995, in which the opposition was rejected. Oral proceedings were not appointed prior to the issue of this decision.
III. The opponent duly filed an appeal against the decision of the Opposition Division. In the Statement of Grounds of Appeal, the opponent requested inter alia that the decision be set aside as null and void because of the failure of the Opposition Division to appoint oral proceedings as requested in the letter filed on 13 April 1995, before issuing the decision dated 16 May 1995. The opponent also requested refund of the appeal fee under Rule 67 EPC.
In a communication issued on 12 February 1996 on behalf of the Board of Appeal, the Board suggested that the correct course in the above circumstances was to remit the case to the Opposition Division, and the proprietor agreed to this course in a letter filed on 4 March 1996.
1. Oral proceedings under Article 116 EPC were requested by the opponent on an auxiliary basis in a letter filed on 13. April 1995, but the Opposition Division did not appoint oral proceedings prior to issuing its decision dated 16 May 1995 in which the opposition was rejected. In these circumstances the decision of the Opposition Division must be set aside as null and void and the case is remitted to the Opposition Division for further prosecution before a different composition of the Opposition Division. The Opposition Division had no power to issue a decision in the circumstances set out in paragraphs I and II above without first appointing oral proceedings.
2. Furthermore, the failure to appoint oral proceedings in accordance with the opponent's request constituted a substantial procedural violation which justifies reimbursement of the appeal fee under Rule 67 EPC.
For these reasons it is decided that:
1. The decision of the Opposition Division is set aside, and the appeal is allowed.
2. The case is remitted to the Opposition Division for examination by a different composition.
3. The appeal fee is to be reimbursed to the opponent.