CLR III B Right to be heard

1.
Introduction
2.
The right to be heard under Article 113(1) EPC
2.1.
Violation of the right to be heard examined ex officio
2.2.
Causal link between the violation of the right to be heard and the final decision
2.2.1
Appeal proceedings
2.2.2
First instance proceedings
2.3.
Surprising grounds or evidence
2.3.1
General principles
2.3.2
The meaning of "grounds or evidence"
2.3.3
Opportunity to comment on evidence
2.3.4
Documents supplied by applicants but used against them
2.3.5
Document cited containing information already known
2.3.6
Reliance on the International Preliminary Examination Report (IPER)
2.3.7
Change of provisional opinion
2.3.8
Statement of grounds of appeal not received by respondent
2.4.
Consideration of the parties' arguments, submissions and evidence
2.4.1
General principles
2.4.2
Decision must demonstrably show that arguments were heard and considered
2.4.3
No obligation to address each and every argument
2.4.4
Failure to consider submissions made after a communication
2.4.5
Failure to consider evidence
2.4.6
Mere reference to jurisprudence
2.5.
The right to be heard and the timing of decisions
2.5.1
Decision could not be expected
2.5.2
Issuing of decision before expiry of time limit to comment
2.5.3
Immediate refusal after communication
2.5.4
Invitation to oral proceedings at short notice
2.6.
The right to be heard in oral proceedings
2.6.1
Introduction of a new claim or relevant document
a)
Cases in which Article 113(1) EPC was violated in relation to the introduction of new claims or relevant documents
b)
Cases in which Article 113(1) EPC was not violated even though new claims or relevant documents were introduced
c)
Cases where no new claims or relevant documents were introduced
2.6.2
Introduction of new arguments
2.6.3
Introduction of a new ground of opposition by the opposition division
2.6.4
Hearing witnesses
2.6.5
Oral submissions of an accompanying person
2.7.
The right to be heard in case of the non-attendance of oral proceedings
2.7.1
Facts and evidence put forward for the first time during oral proceedings in inter partes cases – G 4/92
2.7.2
Non-attendance at oral proceedings before the boards – case law on G 4/92
2.7.3
Non-attendance at oral proceedings before the boards – Article 15(3) RPBA 2007
a)
Ex parte proceedings
b)
Inter partes proceedings
2.8.
Changes in the composition of the opposition division after oral proceedings
3.
Text submitted or agreed by applicant (patent proprietor) – Article 113(2) EPC
3.1.
General
3.2.
The requirement of a text submitted by the applicant
3.3.
The requirement of a text agreed by the applicant
3.4.
Cases where the EPO is uncertain or mistaken about the approval of the text
 

Source: http://www.epo.org/law-practice/legal-texts/html/caselaw/2019/e/clr_iii_b.htm

Date retrieved: 17 May 2021

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