4.5.3 Absence from the oral proceedings

The EPO can consider and decide only on the text of the European patent submitted to it, or agreed, by the proprietor (Art. 113(2) EPC). Moreover, any party duly summoned to oral proceedings cannot rely on the proceedings being continued in writing or the case being remitted to the department of first instance solely because he failed to appear at the oral proceedings, see Art. 15(3) and (6) RPBA 2007). Under those provisions, the board is not obliged to delay any step in the proceedings, including its decision, by reason only of the absence at the oral proceedings of any party duly summoned; that party may then be treated as relying only on its written case. The board must also ensure that each case is ready for decision at the conclusion of the oral proceedings. The explanatory notes to Art. 15(3) RPBA 2007 state that this provision does not contradict the principle of the right to be heard pursuant to Art. 113(1) EPC since that Article only affords the opportunity to be heard and, by absenting itself from the oral proceedings, a party gives up that opportunity (see the explanatory note to Art. 15(3) RPBA 2007 in CA/133/02 dated 12.11.2002, quoted in T 1704/06, T 1278/10, T 2281/12, T 133/12, T 1245/14).

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