OJ EPO 2008, 471

The increasing number of patent applications involves an increasing number of oral proceedings in examination. The purpose of oral proceedings is to settle as far as possible all outstanding questions relevant to the decision. Most of the oral proceedings take place at the request of the applicants. However, recently the number of oral proceedings where applicants do not attend has increased considerably.

If an applicant who has been duly summoned to oral proceedings does not appear as summoned, oral proceedings may be conducted without him (Rule 115(2) EPC, Guidelines for Examination in the European Patent Office E-III, 8.3). The decision may be given orally in the absence of the applicant (Rule 111(1) EPC).

An applicant who files amended claims or other submissions in reply to the summons to oral proceedings has to expect that any objection relating to the amended claims and submissions will be dealt with at the oral proceedings. The fact that oral proceedings are maintained indicates that objections are still outstanding and they will be discussed at the oral proceedings.

The oral proceedings give the applicant the opportunity to present its comments, in accordance with Article 113(1) EPC. If the applicant decides not to attend the oral proceedings he chooses not to make use of the opportunity to comment at the oral proceedings on any of the objections, but relies on the arguments as set out in the written submissions.

The applicant has thus to expect that a decision based on objections which arise against the amended claims during oral proceedings will be taken in his absence.