Case law - Oral proceedings Flashcards
G4/92 Right to comment - Party absent from oral proceedings
A decision against a party who has been duly summoned but who fails to appear at oral proceedings may not be based on facts put forward for the first time during those oral proceedings.
Similarly, new evidence may not be considered unless it has been previously notified and merely supports the assertions of the party who submits it. In principle, however, new arguments may used to support the reasons for the decision.
This decision has been overridden for proceedings in front of the Boards of Appeal by RPBA Article 15(3). However, it still applies to first instance departments.
G2/94 Oral submissions by an accompanying person
A Board of Appeal has a discretion to allow an accompanying person (who is not entitled under
Article 134(1) or (8) EPC to represent parties to proceedings before the EPO) to make submissions during oral proceedings in e ae proceedings, in addition to the complete presentation of a party’s case by the professional representative.
In ex parte proceedings a professional representative should request permission for the making of such oral submissions in advance of the day appointed for oral proceedings. The request should state the name and qualifications of the person for whom permission is requested, and should specify the subject matter of the proposed oral submissions.
The Board of Appeal should exercise its discretion in accordance with the circumstances of each individual case. The main criterion to be considered is that the Board should be fully informed of all relevant matters before deciding the case. The Board should be satisfied that the oral submissions are made by the accompanying person under the continuing responsibility and control of the professional representative.
During either ex parte or inter partes proceedings, a Board of Appeal should refuse permission for a former member of the Boards of Appeal to make oral submissions during oral proceedings before it, unless it is completely satisfied that a sufficient period of time has elapsed following termination of such former member’s appointment to the Boards of Appeal, so that the Board of Appeal could not reasonably be suspected of partiality in deciding the case if it allowed such oral submissions to be made.
A Board of Appeal should normally refuse permission for a former member of the Boards of Appeal to make oral submissions during oral proceedings before it, until at least three years have elapsed following termination of the former member’s appointment to the Boards of Appeal. After three years have elapsed, permission should be granted except in very special circumstances.
G4/95 Oral submissions by an accompanying person
During oral proceedings under Article 116 EPC in the context of opposition or opposition appeal proceedings, a person accompanying the professional representative of a party may be allowed to make oral submissions on specific legal or technical issues on behalf of that party, otherwise than under Article 117 EPC, in addition to the complete presentation of the party’s case by the professional representative.
Such oral submissions cannot be made as a matter of right, but only with the permission of and at the discretion of the EPO. The following main criteria should be considered by the EPO when
exercising its discretion to allow oral submissions by an accompanying person in opposition or
opposition appeal proceedings:
(i) The professional representative should request permission for such oral submissions to be made. The request should state the name and qualifications of the accompanying person, and should specify the subject matter of the proposed oral submissions.
(ii) The request should be made sufficiently in advance of the oral proceedings so that all opposing parties are able properly to prepare themselves in relation to the proposed oral submissions.
(iii) A request that is made shortly before or at the oral proceedings should in the absence of
exceptional circumstances be refused, unless each opposing party agrees to the making of the oral submissions requested.
(iv) The EPO should be satisfied that oral submissions by an accompanying person are made under the continuing responsibility and control of the professional representative.
No special criteria apply to the making of oral submissions by qualified patent lawyers of countries that are not Contracting States to the EPC.
