4.3.5 No obligation to provide detailed reasons for a decision in advance

It is settled case law that a board of appeal is not required to provide the parties in advance with all foreseeable arguments in favour of or against a request (R 1/08 with reference to G 6/95, OJ 1996, 649; see also R 13/09, R 18/09, R 4/13, R 5/15, R 6/16, R 9/18, R 25/22). In other words, parties are not entitled to advance indications of all reasons for a decision in detail (see e.g. R 12/09 of 15 January 2010 date: 2010-01-15, R 15/09, R 4/11, R 18/12, R 2/13, R 9/14, R 7/15, R 8/17, R 14/21, R 20/22, R 4/23). Thus, the right to be heard does not go so far as to impose an obligation on a board to disclose in advance to the parties how and why, on the basis of the decisive issues under discussion, or at least those foreseeable as the core of the discussion, it will come to its conclusion. This is part of the reasoning given in the written decision (see e.g. R 8/17, R 4/23).This principle also applies to the application of the problem-solution approach and even identification of an objective problem (R 8/19), an interpretation of a passage in the state of the art forming only part of such reasons (R 19/11, R 15/12, R 16/13, R 15/21), and to reasons of any level of generality (R 10/17).

In R 8/19 the Enlarged Board held that the right to be heard in the context of the problem-solution approach meant that there should normally have been a discussion on the relevant prior art, the differences between the prior art and the claimed invention, and the technical relevance of these differences. Within the framework of what had been addressed in the course of these discussions, the deciding organ should be free to apply the problem-solution approach as it sees fit, and even identify an objective technical problem that had not been explicitly spelled out as such during the proceedings.