2.4.3 Opportunity to comment on evidence

In J 20/85 (OJ 1987, 102) the Legal Board pointed out that a decision on an issue of fact could only properly be made by the EPO after all the evidence on which such decision was to be based had been identified and communicated to the party concerned. In T 820/10 the examining division refused the application on the ground of lack of inventive step in view of documents that were cited for the very first time in the appealed decision itself. The board held that the decision therefore relied upon evidence on which the applicant had not had an opportunity to present its comments. Furthermore, in J 3/90 (OJ 1991, 550) the Legal Board held that where the EPO had examined the facts, Art. 113(1) EPC was not complied with unless the parties concerned had been fully informed about the enquiries made, and of the results, and had then been given sufficient opportunity to present their comments before any decision was issued (see also J 16/04).

In T 1677/21 the board expressed the view that the reasoning of the opposition division could only be followed if the table on page 8 of D7 was actually taken into consideration. This table was, however, not available in English and was addressed for the first time during the oral proceedings. The board found that the decision was thus based on facts and evidence on which the patentee had had no opportunity to present their comments; the patentee could not have been expected to provide comments before the oral proceedings and the relevant facts had not been provided in an EPO official language. This constituted a violation of the appellant's right to be heard (see also chapter III.I.8 "Opposition procedure").

In T 1401/16 the examining division based its conclusions concerning critical issues, at least in part, on two Wikipedia entries cited in the decision. However, this evidence was never referred to during the examination proceedings and both entries were mentioned for the very first time in the appealed decision itself. In consequence, the applicant had no opportunity to present its comments in that respect. This constituted a violation of the provisions of Art. 113(1) EPC.

See also chapter III.G.3.3. "Right to be heard".