In T 1401/05 of 20 September 2006 date: 2006-09-20 the board excluded the public from that part of the oral proceedings which concerned the exclusion of certain documents from file inspection. Under Art. 116(4) EPC, oral proceedings shall in principle be public in so far as the board does not decide otherwise in cases where admission of the public could have serious and unjustified disadvantages, in particular for a party to the proceedings. The board held that as the debate dealt with the request for exclusion of certain documents from file inspection, which had been excluded provisionally, the public could not be admitted to the hearing on this point. Otherwise the purpose of the provisional exclusion would have been frustrated. In such a situation, the danger of serious and unjustified disadvantages had to be deemed to exist.

In J 2/01 (OJ 2005, 88), at the beginning of the oral proceedings, the Legal Board informed the appellant that these proceedings were not public. Although the requirements of R. 48(2) EPC 1973 for non-publication of the application appeared not to have been met, the application in suit had in fact not been published. Since Art. 116 EPC required publication as a prerequisite for oral proceedings to be public, the Legal Board had corrected its original summons to public oral proceedings.

Referring to R. 144(a) EPC (R. 93(a) EPC 1973), boards excluded the public from oral proceedings on the matter of objections to members of the boards in T 190/03 date: 2005-03-18 (OJ 2006, 502), R 2/14 of 17 February 2015 date: 2015-02-17, R 8/13 of 20 March 2015 date: 2015-03-20 and T 1938/09 of 2 October 2014 date: 2014-10-02. In T 190/03 date: 2005-03-18, at the end of the oral proceedings, the public was readmitted and the decision was given.