e) Cases in which Article 113(1) EPC was not violated even though auxiliary requests were not admitted 

In T 2204/18 the opposition division did not admit an auxiliary request submitted during oral proceedings. The board held that not admitting requests submitted by the patent proprietor did not constitute a breach of the proprietor's right to be heard, provided that the patent proprietor had been given the opportunity to comment on their admittance.

In T 951/19 the board found that the admissibility of auxiliary request 1 filed during the oral proceedings had been discussed during the oral proceedings and both parties had been heard on it. Furthermore, the opponent had not argued that the opposition division had not given it sufficient time and had not requested that the oral proceedings before the opposition division be interrupted or adjourned. The board therefore considered that the case in hand was different from T 783/89, that there was no violation of the right to be heard and that the opposition division had correctly exercised its discretion and also justified it in the contested decision.

The board in T 2156/17, considering the admissibility of an auxiliary request filed during oral proceedings before the board, held that the right to be heard under Art. 113 EPC did not entail the right to be given further possibilities to file new requests if earlier attempts failed. According to the board, the appellant’s right to be heard was met under the circumstances, since the appellant was aware of the objections to the admissibility of the earlier requests and had the opportunity to contest them and present its arguments.

In T 562/20 the board emphasised that the appellant could not derive from the right to be heard a claim to file auxiliary requests at any given time in the appeal proceedings. Moreover, according to the board Art. 13(2) RPBA did not contradict the parties' right to be heard, enshrined in Art. 113(1) EPC, even when a party's amended submission was not taken into account in the appeal proceedings. Art. 13(2) RPBA only regulated the strict requirements for the consideration of amendments filed at a late stage if the party concerned had failed to take the opportunity to make such amendment at an earlier point in time.