Ex parte proceedings 

In T 991/07 the board decided, with reference to Art. 15(3) and 12(2) RPBA 2007, that it could base its decision on objections which would be new to the appellant, but which could not be communicated to it due to the fact that the appellant was not present at the oral proceedings, without infringing the appellant's right to be heard (Art. 113(1) EPC). The board observed that in line with established case law (cf. e.g. decisions T 823/04 and T 1059/04; see also T 1704/06, T 532/09, T 1278/10 – all ex parte cases), the appellant who decided not to attend oral proceedings had nonetheless had the opportunity to do so and that the requirements of Art. 113 EPC were thus met. A further justification for such an approach was that a party who filed substantive amendments to its case and then deliberately absented itself from oral proceedings in order to avoid any adverse decision being reached would infringe the general principle that it is incumbent on both the EPO and users of the European patent system to act in good faith (G 2/97). This was especially true in situations where the appellant had initially requested that oral proceedings be held.

In T 578/14 the board took the view that, in the case in hand, the duly summoned appellant, who of her own volition did not attend the oral proceedings, could not be placed in a more advantageous position than she would have been if she had attended. The appellant's voluntary absence could not therefore be a reason for the board not to raise issues it would have raised if the appellant had been present.

In T 1367/09 the board did not raise Art. 84 EPC in its communication pursuant to Art. 15(1) RPBA 2007. When reconsidering the case in preparation for the oral proceedings, the board noted that Art. 84 EPC should also be addressed. The oral proceedings were held in the absence of the appellant. In its decision, the board stressed that a board's communication has a preliminary character and does not have to be exhaustive. In general, new grounds for refusal have to be discussed during the oral proceedings. However, if a duly summoned appellant does not attend the scheduled oral proceedings, it waives the opportunity to present its comments on new grounds which were not mentioned in the communication under Art. 15(1) RPBA 2007 but are decisive for the decision. In view of the principle of procedural economy, the board is not obliged to delay its decision. A board's decision dealing with new grounds, on which the appellant has not presented its comments, does not contravene the right to be heard (Art. 113(1) EPC) in such a case.

In T 1000/03 the board held that the appellant had been duly summoned, and at the oral proceedings could easily have corrected the minor deficiencies in the description. To delay the decision pending their correction was uncalled for (see Art. 11(3) RPBA 2003, Art. 15(3) RPBA 2007). Under Art. 113(2) EPC, the board had to keep to the text submitted by the appellant (applicant), who by not appearing at the oral proceedings had taken the risk of the application being refused even for easily remediable deficiencies (see also the ex parte case T 1903/06).

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