a)
Failure to summon for oral proceedings 

The refusal of a request for oral proceedings usually amounts to a breach of the right to be heard, and as such, a violation justifying the reimbursement of the appeal fee (see inter alia T 209/88, T 283/88, T 598/88, T 668/89, T 663/90, T 766/90, T 795/91, T 35/92, T 686/92, T 556/95, T 647/99, T 1972/13).

In T 405/96 the board held that receipt of the request for oral proceedings by the EPO was proven by the appellants. The fact that the department of first instance could not be held responsible for the loss within the Office was irrelevant (see also T 671/95).

Failure to summon the parties to oral proceedings was considered to be a substantial procedural violation in T 209/88 and T 93/88 (see also J 16/02). In T 560/88 the board of appeal held that there was a substantial procedural violation where a clear auxiliary request by the appellant for oral proceedings had not been granted (see also T 543/92).

In T 19/87 (OJ 1988, 268), however, the board held that the finding ‒ albeit wrong ‒ that there had been no request for oral proceedings was not a procedural violation within the meaning of R. 67 EPC 1973. Furthermore, failure to seek clarification from the appellant did not constitute a breach of any procedure.

In T 731/93 the board held that the refusal of a request for "further" oral proceedings constituted a substantial procedural violation where fresh evidence had been admitted. Whilst Art. 116(1), second sentence, EPC 1973 does give the EPO the discretionary power to reject a request for further oral proceedings before the same department, it does so only "where the parties and the subject of the proceedings are the same".

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