2.1 Right to be heard 

The right to be heard is a right not just to present comments but also to have those comments duly considered. Amendments and arguments submitted by a party need to be considered, and the party must be given an opportunity to comment on the grounds and evidence brought forward by the examining division (see T 1123/04 and T 852/07). A document may not be cited for the first time in a decision (see T 635/04) unless it has been introduced during oral proceedings. It is permissible to include fresh arguments in a decision that is still based on grounds and evidence communicated beforehand (see T 268/00 and T 1557/07).

If a case is remitted from the boards of appeal for further prosecution, the examining division must check whether requests from examination proceedings prior to the appeal are still outstanding and must give the party an opportunity to comment (see T 1494/05). If the facts and grounds essential to a decision have been submitted by one party and if the party whose case is to be rejected has been afforded sufficient time to comment, the right to be heard set out in Art. 113(1) will have been respected. If the decision in opposition proceedings is to be based on grounds which were raised in the examination proceedings but not in the notice of opposition, the parties' observations or the communications of the opposition division, the opposition division must introduce them into the opposition proceedings (i.e. raised them for discussion) before giving its decision so as to afford the parties an opportunity to comment. If the opposition is based on lack of inventive step, the patent proprietor must expect that the prior art newly invoked in the opposition proceedings will be considered in conjunction with the prior art described in the introductory part of an independent claim. However, if new facts and grounds are introduced during the proceedings or if the facts and grounds on which the envisaged decision is to be based were not stated unambiguously and clearly enough in a party's written submissions for the other party to be able to comment, that other party must be given an opportunity to submit an opinion and to submit evidence before the decision is given.

A patent proprietor's right to be heard is not infringed if, in response to a communication from the opposition division setting out the main arguments against maintaining the patent as granted, they make only minor amendments to the claims and the result is that the grounds for revoking the patent remain essentially unchanged, provided the proprietor's comments have been duly considered.

In such a case, where the obstacles to maintenance have already been put to the proprietor and continue to apply, the patent may be revoked immediately, without any need to communicate again the full arguments on which the decision is based.