T 0777/06 () of 5.12.2006

European Case Law Identifier: ECLI:EP:BA:2006:T077706.20061205
Date of decision: 05 December 2006
Case number: T 0777/06
Application number: 97500214.8
IPC class: F01K 3/18
Language of proceedings: EN
Distribution: C
Download and more information:
Decision text in EN (PDF, 18 KB)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: Fusion heat recovery and combustion gases filtering system with electric power production
Applicant name: Colorobbia Espana, S.A.
Opponent name: Vai Pomini S.r.l.
Board: 3.2.04
Headnote: -
Relevant legal provisions:
European Patent Convention 1973 Art 116
European Patent Convention 1973 R 67
Keywords: Adverse decision issued without granting request for oral proceedings
Substantial procedural violation (yes)
Refund of appeal fee (yes)


Cited decisions:
T 0283/88
T 0598/88
Citing decisions:

Summary of Facts and Submissions

I. This appeal lies from the decision of the opposition division posted 17 March 2006 in which the opposition against European patent 0 848 138 was rejected without oral proceedings being held.

II. In the opposition proceedings, the opponent stated on page 2 of the letter of 6 June 2005:

"The Opponent hereby requests oral proceedings (Article 116 EPC) in case the Opposition Division is of the opinion to maintain the opposed patent as it is or in any amended forms."

The file does not contain information that this request had been withdrawn.

III. The opponent (appellant) lodged the notice of appeal on 16 May 2006 together with the statement of grounds of appeal, paid the prescribed fee simultaneously and requested to set aside the decision of the opposition division, to remit the case to the opposition division, and to refund the appeal fee. He further requested that oral proceedings be held before the opposition division issues any decision.

He argued that a substantial procedural violation occurred because no oral proceedings had been held as requested.

IV. In a communication, the board expressed its preliminary view that the impugned decision appears to rest on a substantial procedural violation and indicated its intention to set it aside, to remit the case to the opposition division for further prosecution and to reimburse the appeal fee.

V. The respondent (patent proprietor) made no submissions in the appeal.

Reasons for the Decision

1. The appeal complies with the requirements of Article 106 to 108 and Rules 1(1) and 64 EPC. It is therefore admissible.

2. The right of parties to oral proceedings is a fundamental procedural right in proceedings before the EPO. The first sentence of Article 116 EPC makes it clear that a party is entitled to oral proceedings upon request. This provision is mandatory and leaves no room for discretion to take into account considerations as speedy conduct of the proceedings, equity or procedural economy. If such request has been made, oral proceedings have to be appointed (T 283/88 of 7 September 1988 and T 598/88 of 7 August 1989, neither published in the OJ EPO).

2.1 In the letter of 6 June 2005, the appellant requested oral proceedings according to Article 116 EPC "in case that the opposition division is of the opinion to maintain the opposed patent as it is or in any amended forms." This clear and unambiguous request was never withdrawn.

2.2 The decision to reject the opposition has the effect that the patent is maintained as granted.

Therefore, the opposition division is not entitled to its decision to reject the opposition and thereby to maintain the patent as granted without appointing oral proceedings.

2.3 For these reasons, the opposition division has not taken due account of the procedural requirements of Article 116 EPC. Consequently, the impugned decision has to be set aside.

3. It is established jurisprudence of the Boards of Appeal that an adverse decision issued without granting a party's request for oral proceedings rests on a substantial procedural violation which justifies the reimbursement of the appeal fee under Rule 67 EPC (see Case Law of the Boards of Appeal of the European Patent Office, 4th edition, VI.C.4).


For these reasons it is decided that:

1. The decision under appeal is set aside.

2. The case is remitted to the opposition division with the order that oral proceedings according to Article 116 EPC shall take place before the opposition division decides on the opposition.

3. The appeal fee shall be reimbursed to the appellant.

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