Absence of applicant (patent proprietor) from oral proceedings 

The purpose of oral proceedings is to give parties the opportunity to present their case and to be heard. However, they give up that opportunity if they do not attend the oral proceedings. It is established case law of the boards of appeal that appellants who submit amended claims shortly before the oral proceedings and subsequently do not attend these proceedings must expect a decision based on objections which might arise against such claims in their absence. It is to be expected, for example, that the board will hold the new claims to be unallowable for lack of inventive step (T 602/03, T 991/07, T 1403/07, T 1587/07, T 1867/07, T 546/08, T 680/10, T 795/11).

In T 1634/11 the board stated that an appellant filing amended claims in response to a board's communication had to expect that the admissibility of the newly filed claims would be considered during forthcoming oral proceedings. Since the new sole main request was not admitted into the proceedings and all previous requests had been withdrawn, there were no further requests on file, so that the appeal had to be dismissed.

A patent proprietor who prior to oral proceedings files amended claims but no description adapted thereto, and who is not represented at the oral proceedings, cannot "rely on" the proceedings being continued in writing or the case being remitted to the department of first instance for adaptation of the description (T 181/02, T 109/02, T 651/08, T 776/05, T 2294/08). Hence, a patent proprietor should make sure, that all the required documents, including a description adapted to the claims, on the basis of which the maintenance of the patent could be ordered are on file, so that a decision can be taken by the board at the end of the oral proceedings if a given request is found allowable (T 986/00, OJ 2003, 554; T 181/02; T 109/02; T 776/05; T 651/08). Amended claims filed without an amended description may lead to revocation (T 1194/08).

In T 979/02, the appellants filed an amended set of claims as a "single main request". The board found that, for reasons of procedural economy, it had no choice but to decide on the admissibility of the request on the basis of whether the request documents were clearly admissible prima facie. It concluded that, prima facie, both the description and the claims taken alone revealed a number of formal deficiencies.

In the situation where an appellant submits new claims after oral proceedings have been arranged but does not attend these proceedings, the board can refuse the new claims for substantive reasons, specifically lack of inventive step, even if the claims have not been discussed before and were filed in good time before the oral proceedings. This will in particular be the case if an examination of these substantive requirements is to be expected in the light of the prevailing legal and factual situation (T 1704/06). See also T 1828/10.

In T 1867/07 the board concurred with this view and added that a duly summoned party who by its own volition is absent at oral proceedings cannot be in a more advantageous position than this party would have been, had it been present. The voluntary absence of the appellant cannot be a reason for the board not to raise issues it could have and would have raised had the appellant been present, and to decide accordingly (T 680/10).

In T 1587/07, it was held that the appellant had had to expect that, in its absence, the board would refuse to admit its new request. The board explained that, given the appellant's absence from the oral proceedings in this ex parte case, it had been unable to discuss with it issues relevant for the purposes of Art. 13 RPBA 2007, such as why features deleted during the proceedings at first instance had been reintroduced at a late stage of the appeal proceedings. Its voluntary absence was not a reason for the board not to raise issues it would have addressed if it had been present (see the similar case in T 1403/07).

In T 1621/09 the board dealt with the following question: where a new argument is put forward for the first time at oral proceedings, how is the exercise of the board's discretion to admit the amendment affected if the party prejudiced is not present at the oral proceedings? The board stated that Art. 13(2) RPBA 2007 must be read subject to Art. 15(3) RPBA 2007, with the result that the absence of a duly summoned party does not prevent a board from allowing an amendment to another party's case and reaching a decision on the basis of the amended case. The absence of the party is nevertheless a factor to be taken into account in the exercise of the discretion. In the case at issue the board decided however not to allow the appellant to amend its case. See also T 607/10.

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