CLR III B 1 1.Introduction

III.B.1. Introduction 

The right of parties to a fair trial is a generally recognised procedural principle under Art. 125 EPC (T 669/90), and to be observed in all proceedings before the EPO (R 2/14). The predictability and verifiability of all state action are indispensable elements of the rule of law and respect for fundamental procedural rights (G 3/08, OJ 2011, 10). The right to be heard under Art. 113 EPC is an embodiment of these fundamental principles.

Under Art. 113(1) EPC the decisions of the EPO may only be based on grounds or evidence on which the parties concerned have had an opportunity to present their comments. The right to be heard under Art. 113(1) EPC is a fundamental principle (J 13/10) and of fundamental importance for ensuring a fair procedure between the EPO and a party to proceedings before it (J 20/85, OJ 1987, 102; G 4/92, OJ 1994, 149). In inter partes proceedings Art. 113(1) EPC reflects the principle that each party should have a proper opportunity to reply to the case presented by an opposing party (G 4/95). Under Art. 113(2) EPC the EPO may examine and decide upon the European patent application or the European patent only in the text submitted to it, or agreed, by the applicant for or proprietor of the patent. Art. 113(2) EPC also enshrines a fundamental procedural principle and is part of the right to be heard (T 647/93, OJ 1995, 132).

A violation of the right to be heard in first instance proceedings may constitute a fundamental deficiency under Art. 11 RPBA that justifies the remittal of the case to the department of first-instance (see Chapter IV.E.7.4.), as well as a substantial procedural violation under R. 103(1)(a) EPC that may, if equitable, justify the reimbursement of the appeal fee (see Chapter IV.E.8.4.3); see, for example, T 820/10, T 623/12, J 13/10.

A fundamental violation of Art. 113 EPC in appeal proceedings can be the basis for filing a petition for review to the Enlarged Board of Appeal (Art. 112a(2)(c) EPC; see Chapter IV.F.3.13). A petition for review can also be based on the failure to arrange requested oral proceedings, and on the failure to decide on a party's request. Both of these additional grounds also reflect an aspect of the right to be heard (see Chapter IV.F.3.14 "Article 112a(2)(d) EPC - any other fundamental procedural defect"). In the present chapter, the case law of the Enlarged Board of Appeal under Art. 112a EPC is only referred to with regard to principles generally applicable to proceedings before the EPO; references to individual "R-decisions" are to be found in Chapter IV.F.3.13. Decisions on the right to be heard taken by the Legal Board of Appeal and by technical boards of appeal are, on the other hand, almost exclusively dealt with in the present chapter, and only exceptionally referred to in Chapter IV.F.3.13.

For the right to be heard in examination proceedings, see Chapter IV.B.2. (in particular Chapter IV.B.2.5 on the refusal of an application after a single communication and Chapter IV.B.2.8 on issuing a further communication). In opposition proceedings the right to be heard is inextricably linked to the principle of equal treatment, see Chapter IV.D.5.1 and, with regard to opposition appeal proceedings, Chapter IV.F.3.13.6; as to the opposition division's obligation to invite the parties as often as necessary to file observations, see Chapter IV.D.5.2; as to the opportunity to comment on new grounds of opposition, see Chapter IV.D.3.4.6. With regard to the observance of the right to be heard in the context of the taking of evidence, see Chapter III.G.3.3. The right to be heard may also play a role in the decision whether to accept late filed submissions (see Chapter IV.C.1).

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