2.3. Application of the rules of interpretation of the Vienna Convention in decisions of the Boards of Appeal
2.3.5 Secondary considerations: dynamic interpretation
The Enlarged Board stated that a "dynamic interpretation" might come into play where considerations have arisen since the EPC was signed which might give reason to believe that a literal interpretation of the wording of the relevant provision would conflict with the legislator's aims. It might thus lead to a result which diverges from the wording of the law (see G 2/12 and G 2/13; G 3/19, point XXII of the Reasons; see also G 3/98, point 2.5 of the Reasons). In consolidated cases G 2/12 and G 2/13 the Enlarged Board concluded in relation to the process exclusion under Art. 53(b) EPC that the concept of dynamic interpretation did not require revising the result of the interpretation established by applying traditional rules of construction.
The application in G 3/19 of the various methods of interpretation provided for in Art. 31 and 32 Vienna Convention, which also took into account the subsequent developments in the contracting states, did not in fact lead to the finding that the term "essentially biological processes for the production of plants" in Art. 53(b) EPC was to be read clearly and unambiguously as extending to products defined or obtained by such processes. The Enlarged Board therefore endorsed the conclusions it had come to in this respect in G 2/12. At the same time, however, it acknowledged that Art. 53(b) EPC did not prohibit this broader understanding of the process exclusion either. Furthermore, it recognised that, with the introduction of R. 28(2) EPC, the legal and factual situation underlying decision G 2/12 had substantially changed. This amendment constituted a new aspect or consideration which had arisen since the EPC was signed and which could give reason to believe that a grammatical, and restrictive, interpretation of the wording of Art. 53(b) EPC conflicted with the legislator's aims, whereas a dynamic interpretation could bring a result that diverged from the wording of the law. This meant that the interpretation of Art. 53(b) EPC in G 2/12 had to be abandoned (albeit not with retroactive effect). See also chapter I.B.3.3.3b) "G 3/19 – dynamic interpretation of Article 53(b) EPC".
In J 6/22, the Legal Board held that a dynamic interpretation of the EPC, as derived from Art. 31(1) and 31(3) Vienna Convention, must take account of developments in national and international procedural law, notably as regards the guarantees of fair trial before a tribunal of law (Art. 6(1) ECHR). It found, through a dynamic interpretation of Art. 116(1) EPC, that there was no "absolute" right to oral proceedings upon a party's request. Rather, it was subject to inherent restrictions by the EPC and procedural principles generally recognised in the contracting states of the EPO. If oral proceedings did not serve any legitimate purpose, the requirement of legal certainty in due time prevented the board from appointing them.
- 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.