Oral proceedings give applicants an opportunity to exercise their rights under Art. 113(1). In examination proceedings, when applicants file amended claims before oral proceedings which they subsequently do not attend, they may expect a decision based on objections which might arise against such claims in their absence. A decision can be taken based on facts and arguments presented earlier in the proceedings and/or based on new arguments which may be expected to be raised (see OJ EPO 2008, 471).
In examination proceedings, the annex to the summons to oral proceedings must include all the objections that are likely to be discussed during oral proceedings and indicate that amended claims in response to the communication will have to be examined at the oral proceedings for compliance with the EPC. This ensures that the applicant's right to be heard (Art. 113(1)) is respected and that the proceedings are not delayed unnecessarily if an applicant does not attend oral proceedings.
Where auxiliary requests are filed before the summons to oral proceedings is issued, these requests must be commented on in terms of both admissibility and allowability. However, the reasoning given in the preliminary opinion is to focus on the main request; only a brief indication of the essential reasons for the non-allowability of the subject-matter or the non-admissibility of the auxiliary requests is to be provided. It is to be noted that this brief indication of the essential reasons for not allowing or not admitting the auxiliary requests has to be thorough enough to ensure that the applicant has been informed of the objections raised by the examining division and has thus been given the opportunity to comment on them (see C‑V, 1.1 and C‑V, 4.9).