R 0010/18 (Fundamental violation of the right to be heard) du 17.12.2020

Decision sufficiently reasoned for purposes of the right to be heard (yes)
Petition allowable (no) – no violation of petitioner's right to be heard

1. One aspect of the right to be heard as covered by Article 113(1) EPC requires a board to consider a party's submissions, i.e. assess the facts, evidence and arguments submitted as to their relevance and correctness.
Article 113(1) EPC is infringed if the board does not address submissions that, in its view, are relevant for the decision in a manner adequate to show that the parties were heard on them, i.e. that the board substantively considered those submissions. (See Reasons, point 2.1.1, affirming the relevant part of catchword 1 of R 8/15).
2. A board is presumed to have taken into account a party's submissions that it did not address in the reasons for its decision, meaning that it, first, took note of them and, second, considered them, i.e. assessed whether they were relevant and, if so, whether they were correct.
An exception may apply if there are indications to the contrary, e.g. if a board does not address in the reasons for its decision submissions by a party that, on an objective basis, are decisive for the outcome of the case, or dismisses such submissions without first assessing them as to their correctness. (See Reasons, point 2.1.1.2).