5.2.7 Exceptional circumstances

Save in exceptional circumstances, a request made shortly before or at the oral proceedings should be refused unless each opposing party has agreed to the making of the oral submissions requested.

In T 520/07 the board did not share the respondent (patentee's view) that the appellant could not be surprised by its request, the same accompanying person having already made submissions in oral proceedings before the opposition division. In all procedural matters, appeal proceedings were completely separate from first-instance ones, so requests made in the latter had no effect for the former.

The board in T 953/21 considered that, of the criteria established in G 4/95, criteria (i) and (iv) were met, and so the remaining issue was the timing of the request made by the appellant (patent proprietor) (criteria (ii) and (iii)). On that issue, it found that Ms B was only to respond to new technical arguments that might be submitted by the opponent at the oral proceedings. Hence no specific oral submissions were proposed which would have required time for the opponent to properly prepare themselves. In these exceptional circumstances, the board saw no reason to refuse the patent proprietor's request that Ms B be allowed to make oral submissions as accompanying person at the oral proceedings, even though the request had been filed only shortly before the oral proceedings.