9.5.8 Right to be heard

The right to be heard (see chapter III.B.) is an important procedural right intended to ensure that no party is caught unawares by reasons given in a decision turning down his request on which he has not had the opportunity to comment (R 2/14 of 22 April 2016). A decision which fails to take into account the arguments submitted by a party and which is based on a ground on which the party had had no opportunity to present its comments, contravenes Art. 113(1) EPC and constitutes a substantial procedural violation, see among many other cases J 7/82, OJ 1982, 391; T 197/88, OJ 1989, 412; T 880/91; T 892/92, OJ 1994, 664; T 951/92, OJ 1996, 53; T 1101/92; T 220/93; T 479/94; T 778/98; T 594/00; T 1039/00; T 2294/12 (comparative tests) and T 203/15.

Other violations of Art. 113(1) EPC may also constitute a substantial procedural violation, see the various cases listed in chapter III.B.2. For a case in which the board found a violation of the right to be heard but held that a reimbursement was not equitable, see T 433/08 (see in this chapter V.A.9.7.1).

The infringement of Art. 113(2) EPC has, in principle, also to be considered to be a substantial procedural violation justifying the reimbursement of the appeal fee (see T 647/93, OJ 1995, 132; see also T 32/82 and J 19/84), for example when the final requests were not clarified (T 666/90, T 552/97, T 1439/05, T 382/10) or when the opposition division overlooked amended claims presented in a submission T 543/92 and T 89/94). See chapter III.B.3. "Text submitted or agreed by applicant (patent proprietor) ‒ Article 113(2) EPC".

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