4.3.15 No right to a communication; communication allegedly misleading

The communication of a board, if any, is a means at the board's disposal to streamline the appeal proceedings and above all the oral proceedings. Not issuing a communication does not constitute a violation of the right to be heard (R 16/09). In R 14/12 the Enlarged Board stated that if a board decided not to issue a communication, it could be assumed that it regarded the whole file as relevant for discussion at the oral proceedings.

In R 3/09 the Enlarged Board noted that discrepancies between a board's provisional opinion as expressed in a communication preparing oral proceedings and its analysis in its final decision was in itself not a fundamental procedural defect.

In R 3/16 the Enlarged Board held that a petitioner is itself responsible for not having attended the oral proceedings where the alleged ambiguity of a communication could have been dispelled. A petitioner is free not to attend the oral proceedings but this choice is at its own risk since a board is never obliged to postpone oral proceedings only because a party does not appear, provided that it bases its decision on the facts and arguments on file (R. 115 EPC and Art. 15(3) RPBA 2007). See also chapter III.B.2.7.3 "Non-attendance at oral proceedings before the boards – Article 15(3) RPBA 2007".

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