T 0792/12 - Interruption by the Board

Key points

• " The fact, as here, that a Board is not convinced by the representative's arguments on a certain matter, and even interrupts the representative to clarify how the representative sees that a certain argument is at all relevant to the claim in question, or to the matter of novelty or inventive step which is being discussed, does not imply that a Board is not listening or is intent on sticking by its provisional opinion.
  In the present case a significant portion of the representative's submissions particularly with respect to the main request, were a simple repetition of the numerous written submissions prior to oral proceedings, and indeed often a repetition of what had been presented already orally but a few minutes earlier. "

EPO T 0792/12 - link

2. Procedural issues

2.1 The appellant's contention in the course of the discussion on the main request, that the Board seemed intent on sticking by its preliminary opinion, seemed not to want to listen to the arguments of the appellant and appeared to lack impartiality in the case by not being convinced by its arguments and interrupting on several occasions, is rejected.

2.2 In accordance with Article 15(1) of the Rules of Procedure of the Boards of Appeal (RPBA), the Chairman of the Board presides over the oral proceedings and ensures their fair, orderly and efficient conduct. When the Chairman sees a need to interject in a party's submissions to ensure that the proceedings are efficiently conducted, in particular to avoid a party repeating arguments, this is done. A Board is not required to passively listen to repetition. In the same way, a Chairman, or indeed any member of the Board, may interrupt when it is felt necessary to ask questions which the Board for example finds important for reaching its decision. The appellant's insistence that the Board not make any interruption during its pleadings, which it considered to indicate a lack of impartiality, is a misconception by that party of what constitutes a fair hearing.

2.3 The fact, as here, that a Board is not convinced by the representative's arguments on a certain matter, and even interrupts the representative to clarify how the representative sees that a certain argument is at all relevant to the claim in question, or to the matter of novelty or inventive step which is being discussed, does not imply that a Board is not listening or is intent on sticking by its provisional opinion. In the present case a significant portion of the representative's submissions particularly with respect to the main request, were a simple repetition of the numerous written submissions prior to oral proceedings, and indeed often a repetition of what had been presented already orally but a few minutes earlier. It is here of relevance to note that, when interrupted on one last occasion so as to limit further repetition, the representative of the appellant himself argued that during his submissions he had in fact made two new points not mentioned in writing (a general reference to T56/87 and a reference to Article 69 EPC - see above, both duly noted and commented upon in the course of the debate by the Board). The objections of the appellant are, at least for these reasons, unfounded.