3.2. Right to oral proceedings before the Receiving Section

Under Art. 116(2) EPC oral proceedings must take place before the Receiving Section at the request of the applicant only where the Receiving Section considers this to be expedient or where it envisages refusing the European patent application. The Legal Board, exercising the powers within the competence of the Receiving Section, can refuse a request for oral proceedings made by an applicant in the course of an appeal against a decision of the Receiving Section for the same reasons (J 20/87, OJ 1989, 67).

Although according to Art. 116(2) EPC the Receiving Section is entitled not to grant a request for oral proceedings, the applicant has the right to a decision on that request (J 16/02). Not deciding on a request put before the Receiving Section constitutes a substantial violation of the applicant's right to be heard (J 9/18). The discretion foreseen in Art. 116(2) EPC in dealing with the request for oral proceedings is not without limits and has to be exercised in light of recognised procedural principles such as the right to be heard set out in Art. 113(1) EPC (J 17/03).

The decision confirming a loss of a right (R. 69(2) EPC 1973, R. 112(2) EPC) is not a case in which the Receiving Section "envisages refusing the European patent application" within the meaning of Art. 116(2) EPC 1973 (J xx/xx=J 900/85, OJ 1985, 159; J 17/03).