5.3.2 Oral proceedings not held despite the lack of an explicit withdrawal
Due to the lack of any substantive response to a notification of inadmissibility of the appeal, the board in T 1573/20 found that holding oral proceedings would have served no other purpose than confirming the (undisputed) preliminary finding that no statement of grounds of appeal had been filed. There was no contentious matter on which the appellant had to be heard according to Art. 113(1) EPC. Oral proceedings would thus have had no legitimate aim. Even more, had the appellant insisted on holding oral proceedings in the absence of any dispute, this would have amounted to a breach of the duty to act in good faith (G 2/97). The board found that this situation was comparable to the "clearly inadmissible appeals" considered in decisions G 1/97 (OJ 2000, 322) and G 2/19 (OJ 2020, A87; See also in this chapter III.C.3.1.5). These decisions were concerned with appeals by a non-party or based on non-existing remedies only. The board was convinced that the Enlarged Board did not consider these examples to be exhaustive. Rather, it acknowledged as a matter of principle that there are exceptions to the right to oral proceedings under Art. 116 EPC (see also T 2377/19).
The Legal Board in J 6/22 found that the requirement for immediate and complete substantiation of the request for re-establishment in respect of the time limit for filing the statement of grounds of appeal had not been fulfilled. The Legal Board held that no further procedural steps were thus permissible, notably no appointment of oral proceedings. If oral proceedings did not serve any legitimate purpose, the requirement of legal certainty in due time would trump and even prevent a board from appointing them (see also T 2542/22). See also in this chapter III.C.3.1.5 as well as chapter III.H.2.3.5 "Secondary considerations: dynamic interpretation" and chapter III.H.7. "The European Convention on Human Rights".
In the absence of an agreed text of the patent, the board in T 990/16 held that there was no matter as to substance on which the board had the power to hear the parties. The board emphasised that it could not be the purpose of Art. 116 EPC and R. 115(2) EPC that a party may oblige a board to hold oral proceedings in which the matter raised by that party cannot be discussed at all. In such a case, a party had no legitimate interest in pursuing its request for oral proceedings. Insisting on them amounted to a breach of that party's duty to act in good faith (G 2/97) and could be regarded as an abuse of right. The board concluded that no serious or legitimate interest existed in the current circumstances for holding oral proceedings, and the procedural right to oral proceedings under Art. 116(1) EPC would thus be exercised for a purpose other than its intended legal aim.
- 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.