5.2.1 Introduction

The decisions reported below show how the criteria established by the Enlarged Board have been applied, both in oral proceedings before the boards and when scrutinising decisions taken by the department of first instance.

In the following cases, the accompanying person was not authorised to make oral submissions: T 334/94 (request not made early enough); T 1208/06 (inventor not the proprietor); T 89/04 (classed as accompanying person – request made just three days before the oral proceedings); T 2135/08 (no information on experts' qualifications and subject-matter of oral submissions); T 1706/06 (request not made early enough – consent not given by the other party); T 302/02 (submissions of the expert of a party on subject-matter not specified in some detail beforehand); T 1676/08 (examination of the criteria – numerous procedural points raised); T 2552/11 (insufficient information to enable other party to prepare); T 520/07 (request made during oral proceedings – same submissions by same person at first instance – appeal proceedings separate); T 8/13 (person closely followed the whole case from beginning); T 484/17 (request not properly substantiated); T 634/16 (request not made early enough).

In the following cases, the accompanying person was authorised to make oral submissions: T 899/97 (request made early enough in circumstances); T 475/01 (persons accompanying both parties – one party representing itself); T 1212/02 (professional representative's colleague – pragmatic approach); T 754/08 (former patent attorney); T 1207/06 (presentation of the entire case – not established); T 919/07 (accompanying persons authorised if contribution relevant to discussion); T 1458/11 (trainee in professional representative's law firm – objection on appeal to scope of submissions not upheld), T 661/14 (right to speak on legal issues – no distinction between legal or technical issues)

In T 2198/15 the board allowed an accompanying person to make oral submissions on specific technical issues. Had permission been refused, it was likely that the respondent would have repeatedly requested that the oral proceedings be interrupted to enable it to consult the accompanying person (see also T 1212/02).

In T 765/21, by submission shortly (two weeks) before the oral proceedings, the proprietor indicated that Mr. X, an employee of the proprietor, would attend the oral proceedings and requested that he be allowed to make oral contributions as a technical expert at the hearing. In view also of the fact that no request had been made to summon Mr. X under Art. 117(1)(e) EPC and R. 118 EPC, the board concluded that Mr. X should be considered as an accompanying person within the meaning of decision G 4/95. As indicated in G 4/95, oral submissions by persons accompanying professional representatives but not covered by Art. 117 EPC cannot be made as a matter of right, but only at the discretion of the board. Without any indication of his qualification or the nature of his intended contribution, the request did not meet the criteria in G 4/95. And the opponent did not agree.

In the following decisions, the boards held that G 4/95 did not apply: T 621/98 (patent proprietor); T 1687/08 (lawyer).