4.3.20 Further examples of unsuccessful petitions

In R 17/13 the Enlarged Board stated that if a party informed the board that it would not be attending the oral proceedings and the case was then decided in the party's absence, the party's right to be heard was not infringed.

In R 16/12 the Enlarged Board found that the principle of efficiency required a board of appeal to focus on what is relevant for the decision. If a case can be decided on the basis of sufficiency of disclosure, discussing any other ground such as inventive step would concern an obiter dictum.

In R 4/12 the Enlarged Board stated that the assertion that the petitioner learned during the break in the oral proceedings, from a third party who had presented himself as the examiner who had taken the decision, that its appeal was going to be dismissed, had no bearing on an alleged infringement of the right to be heard.

In R 21/09 the Enlarged Board found that national judgments and documents submitted in national proceedings may be introduced into appeal proceedings. Accepting such documents as evidence – to be freely assessed by the board – does not, as such, violate the right to be heard.

In R 10/08 the Enlarged Board stated that if the Chair deviated from the procedure provided for in Art. 15(5) RPBA 2007 by not stating the requests before closing the debate, this omission had not affected the petitioner's right to be heard under Art. 113(1) EPC in the case in hand, in that it had had sufficient opportunity to present its comments on the grounds and evidence on which the decision of the board of appeal was based.

In R 3/08 (referring to G 4/95, OJ 1996, 412) the Enlarged Board stated that oral submissions made by an accompanying person were under the discretionary control of the EPO. The Enlarged Board found that the denial of a request – made shortly before the oral proceedings – for an accompanying person to present oral submissions (requiring interpretation) was not a fundamental violation of Art. 113(1) EPC.

In R 12/22 the Enlarged Board held that a merely abstract breach of the conditions laid down in G 4/95 for the admission of submissions by an accompanying person could not be decisive when examining whether the right to be heard had been violated. That right related to having an opportunity to respond appropriately to the content of specific statements, not to the right to have this content presented by an accompanying person entitled to make detailed submissions under the supervision of a professional representative.