2.3.5 Secondary considerations: dynamic interpretation

The petition in R 16/23 concerned decision J 6/22 with which the Legal Board of Appeal (the "Legal Board") rejected the petitioner's request for re-establishment of rights and rejected the appeal as inadmissible. The petitioner argued that the Legal Board had failed, contrary to Art. 116 EPC, to arrange for the holding of oral proceedings requested by the petitioner, which represented a fundamental procedural defect within the meaning of Art. 112a(2)(d) EPC and R. 104(a) EPC. Furthermore, the decision was based on grounds or evidence on which the petitioner had not had any opportunity to comment, representing a fundamental violation of Art. 113(1) EPC within the meaning of Art. 112a(2)(c) EPC. The petitioner submitted, inter alia, that the conclusions in the decision under review that procedural economy had been a justification for denying the petitioner's right to an oral hearing were contrary to the established case law of the Boards of Appeal.

The Enlarged Board of Appeal (the "EBA") as composed under R. 109(2)(b) EPC held that, according to the wording of Art. 116 EPC, the aspect of expediency referred only to the first alternative, where oral proceedings take place at the EPO's own initiative. Thus, the department concerned with a request for oral proceedings made by a party to the proceedings had no discretion over whether oral proceedings take place.

The EBA also recalled that the right to request oral proceedings included the right for the party requesting them merely to present orally what it had already submitted in writing (see R 3/10). It held that Art. 116(1) EPC, taking into account the purpose of this provision, was thus intended to ensure that a party was entitled, upon request, to make oral submissions prior to a decision which adversely affected that party.

The EBA agreed with the decision under review in that the case law of the Boards of Appeal had established that, in specific situations which may be considered as covered by the wording of Art. 116(1) EPC, a decision taken without prior oral proceedings despite a request for oral proceeding having been made could be considered as not being in conflict with that provision. It found, however, that the situation underlying the decision under review did not fall under any of the categories established in the case law.

Furthermore, the EBA saw no indication that a dynamic interpretation could lead to the conclusion that Art. 116(1) EPC left room for weighing up, on the one hand, the petitioner's right to present the case orally before the adverse decision had been taken and, on the other hand, aspects relating to the expeditious conduct of the appeal proceedings, legal certainty or the prospects of success of the petitioner's appeal, or to a conclusion that the Legal Board had not been obliged to arrange for the holding of oral proceedings requested by the petitioner. The EBA was not persuaded that the considerations relied upon in the decision under review could lead to the result that the requested oral proceedings had not been mandatory under Art. 116(1) EPC, nor that the petitioner's right to oral proceedings could be balanced against considerations relating to the requirement of timely legal certainty or procedural economy.

The EBA concluded that the Legal Board's failure to arrange for the holding of the oral proceedings had been contrary to Art. 116 EPC and, in view of this, a fundamental procedural defect under Art. 112a(2)(d) EPC had occurred.

According to the EBA, in the case underlying the petition for review, the issues in relation to which oral proceedings had been requested and the final decision had been linked. Hence, the procedural defect of not arranging for the holding of oral proceedings, contrary to Art. 116 EPC, had been a fundamental one within the meaning of Art. 112a(2)(d) EPC in conjunction with R. 104(a) EPC. To arrive at this conclusion, the EBA, in particular, did not have to additionally assess whether the outcome of the decision under review could or would have been different if the procedural defect of not arranging for the holding of oral proceedings had not occurred. According to the EBA, this approach was in line with the case law of the Boards of Appeal, including the EBA (R 3/10).

As a fundamental procedural defect under Art. 112a(2)(d) EPC in conjunction with R. 104(a) EPC had been established, the petition for review was considered allowable. According to the EBA the further ground for the petition (fundamental violation of Art. 113(1) EPC) did not need to be addressed. The decision under review was set aside and the proceedings before the board re-opened.

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.