4.4.1 Rule 104(a) EPC – failure to arrange requested oral proceedings

The right to oral proceedings under Art. 116(1) EPC forms a substantial part of the right to be heard under Art. 113(1) EPC. Non-compliance with a request for oral proceedings deprives the party of an important opportunity for presenting its case (T 1050/09) and may constitute a fundamental procedural defect which merits the same treatment as the cases covered by Art. 112a(2)(a) to (c) EPC (CA/PL 5/02 Rev. 1 Add. 1, p. 26).

In R 2/12 of 17 October 2012 date: 2012-10-17 the petitioner argued that R. 104(a) EPC should be understood not only as an obligation to arrange oral proceedings but also to give the parties enough time to exercise their right to be heard. The board held that the duration of oral proceedings is, as such, not listed among the procedural defects that might justify filing a petition for review (see also R 21/10).