d) Announcing non-attendance – no obligation to hold oral proceedings in the party's absence 

In T 1750/19 the board held that it is established case law that, if oral proceedings are scheduled as a result of a party's request for such proceedings on an auxiliary basis, and if that party subsequently states that it will not be represented at the oral proceedings, the board is not obliged to hold oral proceedings in the party's absence. Under these circumstances, it was within the discretion of the board to decide whether the scheduled oral proceedings were to be maintained or cancelled, since it could not be the purpose of Art. 116 EPC that a party could oblige a board to hold oral proceedings in its absence (see also T 1103/22).

In T 910/02 the board remitted the case to the department of first instance for further prosecution without oral proceedings, since all the parties who had presented their comments in the appeal proceedings had either withdrawn their auxiliary request for oral proceedings or had stated that they would not attend oral proceedings. In such a case the board has discretion either to abide by the date for the oral proceedings in order to announce a decision, or to cancel the oral proceedings and issue a decision based on written proceedings (see also T 154/17, T 1750/19, T 1103/22). T 663/10 confirmed T 910/02, adding that the board was not obliged to hold oral proceedings in the absence of the party, even if the appellant had explicitly maintained its request for oral proceedings (see also T 1750/19, T 1103/22). In T 671/12 the board followed these decisions and held that it could not be the purpose of Art. 116 EPC that a party could oblige a board to hold oral proceedings in its absence. See also T 166/17, T 1750/19, T 3002/19, T 1103/22.

Referring to T 671/12 and T 663/10 the board considered in T 263/22 that if the sole party in ex parte proceedings indicated that it would not be attending oral proceedings, the board was not obliged to hold oral proceedings in the absence of the party, i.e. with the board being the only participant. It furthermore clarified that if the appellant was legally required to be represented by a professional representative, an indication that the representative would not be attending equated to the appellant not participating in the oral proceedings.

In the ex parte proceedings of T 674/19 the board did not interpret the appellant's announcement it would not attend the oral proceedings as a withdrawal of its request for oral proceedings. Instead, it considered holding oral proceedings to be appropriate in order to close the debate and to announce a decision at the oral proceedings. According to the board, it had discretion under Art. 116(1), first sentence, EPC to either maintain the date of the oral proceedings, in order to announce a decision at the oral proceedings, or to cancel the oral proceedings and issue a decision based on written proceedings, taking into account the appellant's right to be heard under Art. 113(1) EPC.