2.5.1 General principles

The right to be heard under Art. 113(1) EPC requires that those involved be given an opportunity not only to present comments (on the facts and considerations pertinent to the decision) but also to have those comments considered, that is, reviewed with respect to their relevance for the decision on the matter (see, with regard to Art. 112a EPC, chapter V.B.4.3.11 "Consideration of the parties' arguments in the written decision" and, with regard to R. 111(2) EPC, chapter III.K.3.4. "Reasons for the decision"). However, it is not necessary to consider each and every argument of the parties in detail in a decision. The boards may also refute arguments implicitly, and may disregard irrelevant arguments (R 5/15). Furthermore, according to the Enlarged Board in R 10/18, a board is presumed to have taken into account a party's submissions that it did not address in the reasons for its decision. An exception may apply if there were indications to the contrary, e.g. if a board did not address in the reasons for its decision submissions by a party that, on an objective basis, were decisive for the outcome of the case, or it dismissed such submissions without first assessing them as to their correctness. See also T 1550/18 in which the board applied these principles by analogy to a department of first instance, as well as chapter III.K.3.4.2 "Right to be heard – right to have submissions taken into consideration".

In R 6/20 date: 2023-07-10 the Enlarged Board clarified that the requirement that "the Board substantively considered those submissions" (point 1, second paragraph, of the Catchword in R 10/18) should be given the meaning that "the Board considered the contents of those submissions", with this consideration comprising matters pertaining to admittance of facts, evidence and requests, and/or relating to substantive law, i.e. the merits of a case. See also chapters III.K.3.4.2 "Right to be heard – right to have submissions taken into consideration" and V.B.4.3.11 "Consideration of the parties' arguments in the written decision".