4.3.17 Alleged violation of Article 113(2) EPC

Art. 113(2) EPC does not give any right to an applicant in the sense that the EPO is in any way bound to consider a request for amendment put forward by the applicant. The effect of this provision is merely to forbid the EPO from considering and deciding upon any text of an application other than that "submitted to it, or agreed, by the applicant or proprietor" (G 7/93, OJ 1994, 775). See also R 10/08, R 11/11).

In R 10/08 the Enlarged Board stated, citing G 12/91 (OJ 1994, 285), that the moment a decision is pronounced is not the last moment at which parties may still make submissions: "This must be done at an earlier point in the proceedings to allow the decision-making department time to deliberate and then to issue its decision based on the parties submissions". Even if the debate could be re-opened in exceptional cases, the parties have to expect that, as long as it is not re-opened, a decision can be given after deliberation.

In R 8/16 the petitioner alleged a fundamental breach of its right to be heard partially on the basis that the decision of the board did not explain what had happened to requests withdrawn and replaced by the petitioner before the final decision of the board. The Enlarged Board held that giving reasons on withdrawn requests might well have given rise to an objection under Art. 113(2) EPC.

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