2.7. The right to be heard in oral proceedings

The right to oral proceedings regulated by Art. 116(1) EPC forms a substantial part of the right to be heard granted by Art. 113(1) EPC (T 209/88, T 862/98, T 1050/09). The right to be heard in oral proceedings subsists so long as proceedings are pending before the EPO (T 598/88, T 556/95, T 114/09).

The right to present comments enshrined in Art. 113(1) EPC does not need to be exercised in writing but may be satisfied by way of oral proceedings (T 1237/07). This does not mean, however, that it is for the boards to ensure, of their own motion, that all points raised at some point in the proceedings are discussed at the oral proceedings. Rather, it is for the parties to address any point they consider relevant and fear may be overlooked and to insist, if necessary by way of a formal request, that it be discussed (R 17/11). This also applies in oral proceedings before the opposition division (T 7/12).

In T 2232/11 the board held that the mere announcement of a further submission based on additional documents, at the opening of the discussion on an invention's reproducibility, was insufficient to oblige the examining division to follow this announcement up ex officio later on in the oral proceedings. The applicant was therefore responsible for notifying the examining division, where necessary via a formal request, of its intention to make further submissions on the topic. Given the course of the proceedings, the applicant ought to have expected that the examining division might reach a final decision after interrupting the proceedings to deliberate.

Conversely, Art. 113(1) EPC cannot be interpreted in a way that a party's right to be heard is already satisfied if a party, having requested oral proceedings according to Art. 116 EPC, has had the opportunity to argue in writing. If this interpretation of Art. 113(1) EPC were to be followed, the parties' right to oral proceedings under Art. 116 EPC would be redundant, with the unacceptable consequence that an opposition division or a board of appeal would be entitled, with regard to a controversial issue discussed during written procedure, to give a decision right at the beginning of oral proceedings without hearing the parties (T 1077/06). See also T 2610/19, in which the board concluded that the opposition division’s refusal to hear the opponent on the relevance of other starting points constituted an infringement of the opponent’s right to be heard.

In T 1414/18 the board held that a statement such as "the next procedural step will be summons to oral proceedings during which the application will be refused" made prior to a final decision to refuse a patent application may infringe a party's right to be heard and thus may lead to a substantial procedural violation. The phrase "will be refused" – on an objective basis – implied that, regardless of any facts or arguments the applicant could potentially have brought forward thenceforth, the application was finally to be refused under Art. 97(2) EPC. Such a conduct of the proceedings was contrary to the very aim and purpose 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 in the manner it wishes and using the possibilities open to it under the EPC. By virtue of its request for oral proceedings, the party can rely on such proceedings being appointed before an adverse decision is issued, and therefore has no reason to submit further arguments in writing (see T 209/88, T 1050/09; and also chapter III.C.3. "Right to oral proceedings"). In T 2024/21 the board concluded that the examining division's continual refusal to appoint oral proceedings and indeed its explanation for not doing so, had made it evident that the appellant had been left with no realistic possibility to have its request for oral proceedings met. The board noted that, although the appellant had ultimately withdrawn its request for oral proceedings and requested a decision on the state of the file, in view of the overall course of the examination proceedings, it had been deprived of its right to be heard in oral proceedings as enshrined in Art. 113(1) and 116(1) EPC (see also in this chapter III.B.2.3.2, chapter III.C.3.1. "Right to oral proceedings in examination, opposition and appeal proceedings" and chapter III.C.5.3.4 "Duty to hold oral proceedings not affected despite withdrawal of request for oral proceedings").

Conducting oral proceedings effectively and efficiently, although subject to the discretionary power of the Chair, must nevertheless guarantee that the fundamental procedural rights of each party in adversarial proceedings, i.e. the right to fair and equal treatment, including the right to present comments in oral proceedings (Art. 113(1) and 116 EPC) are respected (T 1027/13; see also chapter IV.C.6.1. "Principle of equal treatment").

There is no infringement of the right to be heard where an examining division refuses to minute a party's submissions during oral proceedings (T 1055/05).

A party's right to be heard under Art. 113(1) EPC does not imply a separate right of the party's representative to be heard and therefore does not imply a right to have oral proceedings before the EPO held by video conference (T 2068/14). In T 1624/20 the board held that deciding to change the format of the oral proceedings to videoconferencing without giving the appellant any prior opportunity to present their comments did not constitute an infringement of the right to be heard. The board noted that there had already been an exhaustive exchange of arguments on the format that oral proceedings were to take prior to them being held (see also T 250/19). The Enlarged Board made it clear in R 12/22 that a merely theoretical possibility of impaired communication and discussions in oral proceedings held by videoconference before a board of appeal did not amount to a violation of Art. 113(1) EPC. See also chapter III.C.8.3. "Format of oral proceedings".