8.9. Closing and reopening the debate

According to the established practice, the closing of the debate marks the last moment in the oral proceedings at which parties can still make submissions (G 12/91, OJ 1994, 285; R 10/08; R 14/10; T 595/90, OJ 1994, 695; T 196/22). Once the debate has been closed, further submissions by the parties must be disregarded unless the deciding body allows the parties to present comments within a fixed time limit or decides to reopen oral proceedings for further substantive debate (G 12/91). Reopening of the debate is at the deciding body’s discretion (T 595/90, T 683/14, T 2401/19).

In T 577/11 the board held that if the debate on a particular topic had been closed without announcement of a decision on the matter, the board had discretion over whether it would reopen the debate and over the extent to which it would do so. A decision given orally by a board became effective and binding by virtue of being pronounced (see G 12/91). It excluded any reopening of the debate. In addition to announcing a decision or reopening the debate, the board could announce conclusions of its deliberations or invite the parties to discuss the next topic. A reopening of the debate was an exception (see also R 10/08) and there was no right of a party to have the debate reopened.

In T 1525/19 the board held that a main consideration for reopening the debate was whether the parties had had sufficient opportunity to comment on the grounds and evidence on which the decision was based (Art. 113(1) EPC).

In T 2401/19 the debate had been closed shortly before oral proceedings were interrupted. After the resumption of oral proceedings, the appellant filed an objection under R. 106 EPC on the grounds that its right to be heard had been violated during the oral proceedings. In view of the purpose of an objection under R. 106 EPC, the board considered it appropriate to reopen the debate, but only with respect to this objection.

In T 196/22 the board found that it was unlikely to reopen the discussion once the parties had been properly heard and the board felt in a position to form an opinion. It was within its discretion to refuse a request by a party for time to formulate questions to the Enlarged Board, the only purpose for which could be to reopen a debate that had already been closed and upon which the board had relied to reach its conclusions (as to a referral under Art. 112(1)(a) EPC see also chapter V.B.2.3.1 "General").

In T 888/17 the board held that there was no provision in the EPC pursuant to which a board was under an obligation to render a decision at the end of the oral proceedings (see also T 1224/21) and that it lay within the discretion of the board to continue the proceedings in writing if it considers that the matter was not ripe for a decision.

Examples of cases in which the debate has been reopened are: T 932/04, T 577/11, T 117/15, T 2401/19.

With regard to reopening the debate before the EPO departments of first instance, see T 683/14.