3.1.4 No right to telephone conversation

According to the established case law, the EPC foresees the absolute right to oral proceedings under Art. 116(1) EPC, but not the right to a telephone interview or an informal telephone consultation. This applies to the proceedings before the boards of appeal, as well as to the proceedings before the examining division (see also chapter IV.B.2.7. "Informal communications").

A board is not required to contact the appellant by holding a telephone interview, for instance with the rapporteur, either after receipt of the response to the summons, or on the day of the oral proceedings (T 189/06, T 552/06, T 1984/07, T 578/14).

In T 263/07 the appellant had requested that the rapporteur of the board telephone the appellant's representative to discuss the case so that the oral proceedings could possibly be cancelled. The board held that it was important that the same case was presented to all the board's members. For one of the board's members to be privy to evidence or arguments not available to the other members would be a breach of the principle of collective decision-making and in conflict with Art. 21 EPC 1973. Since the requested telephone interview could have led the rapporteur to take a position on an issue where a collective decision would have been required, or to commit the board without preliminary discussion, the request was refused. See also T 1109/02, T 653/08, T 911/10. This was confirmed in T 1251/08, in which the board added it wished to avoid giving the impression that it was never appropriate for parties in ex parte proceedings to telephone the rapporteur.

In T 1984/07 the board did not rule out that there may be circumstances in which a telephone call may be appropriate: for example, if only minor objections remain which could be easily attended to by straightforward amendments. However, in the case in hand, the objections were of such nature that any further amendments were likely to entail more than just a simple modification to the wording of the claims or a straightforward adaptation of the description. Examples of cases in which the rapporteur contacted the applicant by phone are: T 182/90 (OJ 1994, 641), T 329/90, T 594/94, T 931/99, T 845/10, T 680/13.

In T 702/17 the board explained that conducting oral proceedings with a party over the telephone was not provided for in the EPC. Accordingly, the examining division had acted correctly in refusing to allow the inventor to take part in the oral proceedings over the phone. Furthermore, the inventor had still been allowed to speak over the telephone, with the representative relaying the inventor's words to the examining division – a course of action the representative had agreed to, according to the minutes. The board found that there was therefore no substantial procedural violation which would justify a refund of the appeal fee.