3.1. Right to oral proceedings in examination, opposition and appeal proceedings
3.1.5 No absolute right to oral proceedings?
In G 2/19 (OJ 2020, A87) the Enlarged Board considered that a third party within the meaning of Art. 115 EPC who has filed an appeal against a decision to grant a European patent has no right to have its request for an order that examination proceedings in respect of the European patent be reopened for the purpose of removing allegedly unclear claims (Art. 84 EPC) heard at oral proceedings before an EPO board of appeal. Given the variety in the scope of application of Art 116(1), first sentence, EPC, its nature could not be considered so, as it were, absolute. The legislator had clearly intended it to serve as a basic rule governing the typical cases facing EPO departments in their everyday practice but it could not be ruled out that exceptions to this basic rule might be made where its application would make no sense in the specific circumstances of an individual case. Instead, Art. 116(1), first sentence, EPC was to be interpreted narrowly, such that a purely formal position as de facto party to appeal proceedings was not enough to confer a right to require that oral proceedings be held if the person requesting them had no standing to appeal, because they had not been a party to the foregoing proceedings in the legal sense, or if the grievance they invoked was not appealable (see referral in T 831/17 of 25 February 2019 date: 2019-02-25).
The Legal Board in J 6/22 held that in light of the principles of a fair trial and legal certainty in due time, there was no absolute right to oral proceedings under all circumstances (not followed by T 596/22). The right to oral proceedings upon a party's request was subject to inherent restrictions by the EPC and procedural principles generally recognised in the EPC contracting states (Art. 125 EPC). A literal interpretation of Art. 116(1) EPC conflicted with the legislature's aims when oral proceedings served no purpose and would thus only prolong proceedings to no one's avail. The very purpose of Art. 116(1) EPC could be seen as providing for the essential right to be heard in oral proceedings only in so far as these served a legitimate purpose and thus did not run counter to the requirement of legal certainty in due time as a further essential element of a fair trial for all parties. In a case like the one at hand, legal certainty in due time, just as procedural economy, as a further essential cornerstone of a fair trial, had to prevail (see also T 2542/22). See also in this chapter III.C.5.3.2f) as well as chapters III.H.2.3.5 "Secondary considerations: dynamic interpretation" and III.H.7. "The European Convention on Human Rights".
- T 1874/23
In T 1874/23 the board refused the request for re-establishment of rights and, as a consequence, rejected the appeal as inadmissible. The appellant’s request for oral proceedings was found to be obsolete.
The board recalled R. 136(1) EPC and noted that it corresponded to the principle of "Eventualmaxime" under which the request for re-establishment of rights must state all grounds for re-establishment and means of evidence without the possibility of submitting these at a later stage. Only if this requirement for immediate and complete substantiation within the time limit has been fulfilled, it might be permissible to complement the facts and evidence in later submissions, and provided that they do not extend beyond the framework of the previous submissions (e.g. J 19/05). According to the board, this was not the case for the request for re-establishment in the proceedings at hand. As a consequence, no further procedural steps were permissible, notably no further communication by the board and no appointment of oral proceedings. Neither would serve any legitimate purpose. It was not the purpose of oral proceedings in the context of proceedings for re-establishment to give the appellant a (further) chance to substantiate their factual assertions or to provide evidence despite the absence of factual assertions (e.g. J 11/09).
The board stated that it was undisputed that the right to oral proceedings as guaranteed by Art. 116(1) EPC was a cornerstone of proceedings before the EPO. The jurisprudence of the boards generally even followed the assumption of an "absolute" right to oral proceedings upon request as a rule, without room for discussion by the board, and without considering the speedy conduct of the proceedings, equity or procedural economy. However, even this "absolute" right to oral proceedings upon a party's request was subject to inherent restrictions by the EPC and procedural principles generally recognised in the contracting states of the EPO (Art. 125 EPC and J 6/22). Limits to the "absolute" right to oral proceedings had also been recognised in the jurisprudence of the boards (e.g. G 2/19, T 1573/20). Moreover, the boards' jurisprudence had repeatedly emphasised that the requirement of timely legal certainty, in particular in the context of intellectual property rights, was also recognised as a fundamental principle of the EPC. The parties' rights to a fair hearing within a reasonable time, in the context of the RPBA, had also been explicitly underlined by the boards' jurisprudence. In summary, where, as in the present case, oral proceedings served no legitimate purpose, the need for legal certainty in due time trumped and even prevented a board from appointing oral proceedings (J 6/22).
As to the interpretation of Art. 116(1) EPC, the board noted that the jurisprudence of the boards had reiterated the importance of a "dynamic" interpretation of the EPC in light of its object and purpose. In this context, the board referred, among others, to the development of the case law of the ECtHR on Art. 6(1) ECHR, where the ECtHR had also identified occasions where oral proceedings could or even should be dispensed with in pursuit of a party's right to a fair trial. In the board’s view, a literal interpretation of Art. 116(1) EPC conflicted with the legislature's aims when oral proceedings would serve no purpose and thus only prolong proceedings to no one's avail. A literal interpretation of Art. 116(1) EPC thus had to make way for a dynamic and evolutive understanding instead, in light of the provision's object and purpose. The very purpose of Art. 116(1) EPC could be summarised as providing for the essential right to be heard in oral proceedings only in so far as these served a legitimate purpose and thus did not run counter to the need for legal certainty in due time, as a further essential element of a fair trial for all parties.
The board concluded that, at least in the specific circumstances of the case in hand, legal certainty in due time, just as procedural economy, as further essential cornerstones of a fair trial, had to prevail (for essentially the same circumstances see J 6/22). In light of the principles of a fair trial and legal certainty in due time, there was no absolute right to oral proceedings under all circumstances (J 6/22). No oral proceedings had to be appointed in re-establishment proceedings where the "Eventualmaxime" principle would deprive oral proceedings of its very function as a further cornerstone of a fair trial and even run counter to it.