5.5. Auxiliary request for oral proceedings

There is no requirement in the EPC or in the case law that only unconditional requests to oral proceedings are admissible. It is normal practice to request oral proceedings e.g. only for the eventuality of an imminent adverse decision (see inter alia T 870/93, T 1136/10). According to the established practice of the boards of appeal, a request for oral proceedings on an auxiliary basis is interpreted as a request for oral proceedings unless the board intends to decide the case in favour of this party (see T 3/90, OJ 1992, 737).

In T 902/04 the board held that, since the opponent's request was allowed, there was no need to hold the oral proceedings which only the opponent had requested on a purely auxiliary basis. See also T 545/08, T 749/15, T 494/21. In T 606/22 the board allowed the appeal and found that the appellant's auxiliary request for oral proceedings therefore had no procedural effect (see also T 990/16).

In T 344/88 the appellants requested that oral proceedings be held if the opposition division intended to maintain the patent in whole or in part. The opposition division rejected the opposition as inadmissible without appointing oral proceedings. The board found that while it was true that, in rejecting the opposition as inadmissible, no formal decision had been taken to maintain the patent, this was nevertheless the consequence of the decision. According to the board, this showed that an auxiliary request for oral proceedings should not be assessed solely on the basis of its wording.

In numerous decisions the boards concluded that a party was not adversely affected by a decision to remit a case for further prosecution without any consideration of the substantive issues, so that there was no need to appoint oral proceedings requested on an auxiliary basis (see inter alia T 147/84, T 42/90, T 47/94, T 1434/06, T 1367/12, T 1727/12, T 1205/13, T 1051/20). In T 924/91 the board specified that while remittal meant that the patent was not yet to be granted, it also meant that the decision under appeal was being set aside and that the application was not refused (see also T 222/87). In the board’s view in T 47/94, it was furthermore neither necessary nor appropriate to appoint oral proceedings solely to discuss whether or not the case should be remitted to the opposition division (see also T 1051/20), particularly since this would further delay the final decision.