4.3.9 Timing of a decision allegedly surprising

It is not sufficient to claim that the duration of the oral proceedings resulted in a violation of the right to be heard. The petitioner must rather establish that, for reasons of lack of time, it was deprived of the possibility to defend its case properly, resulting in a decision based on grounds that it did not have an opportunity to comment upon (R 2/12 of 17 October 2012).

In R 14/10 the petitioner argued that he was surprised that the requests as read out would be interpreted as his final requests. The Enlarged Board held that that the chairman had also read out the opponent's request "that the decision under appeal be set aside and that the European patent […] be revoked" indicated beyond any reasonable doubt that, after the closure of the debate, the board had intended to deliberate on the patentability of independent claims and that, depending on the outcome of said deliberation, it could pronounce the revocation of the patent as a whole (see also R 7/14).

In R 4/12 the Enlarged Board stated that when a board, after discussing novelty, interrupts oral proceedings for deliberation, a party should be aware that the board could take a negative decision on novelty. In R 3/10 the Enlarged Board held, however, that be surprising for a party if only novelty was discussed and a request is then rejected due to lack of inventive step (see in this chapter V.B.4.3.19).

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