3.6.4 Minutes as evidence that the objection was raised

The test whether an objection was validly raised during oral proceedings is normally the minutes which, as prescribed by R. 124(1) EPC, must contain the relevant statements of the parties (R 4/08, R 17/10, R 8/16). The absence in the minutes of an objection under R. 106 EPC and of any request for correction of the minutes is a strong indication that such an objection, if any, was at least not duly qualified (R 3/11; see also R 5/14, R 6/13, R 3/14).

In R 7/11 the Enlarged Board noted that unless duly corrected, the minutes of the oral proceedings authenticate the facts they relate to, and in R 2/12 of 17 October 2012 the Enlarged Board stated that If a party is really convinced that a violation of its right to be heard has occurred during the oral proceedings the subsequent objection must be clearly raised as such, so that it will oblige the board of appeal to react, and require this to be recorded in the minutes in accordance with R. 124 EPC.

In R 8/17 the board stated that the petitioner's own submissions did not allow the conclusion that it had raised an objection in the oral proceedings which could qualify as an objection under R. 106 EPC and if the petitioner had considered the minutes to be incomplete in this regard, one would have expected it to submit a corresponding request for correction (see R 17/10). However, in R 3/08 the Enlarged Board also took private minutes taken by an employee of the petitioner into account.

In R 8/16 the Enlarged Board noted that while there was no strict formal obligation on parties to request a correction to the minutes, not doing so will leave them with the burden of proof against the minutes in case of dispute.

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