T 2370/16 - Parties can't be permitted to influence the minutes

Key points

• In this examination appeal, the applicant had requested a certain statement to be included in the minutes of the oral proceedings before the Board.
• The Board recalls that " It is within the discretion of the board what is considered "essential" or "relevant"; what constitutes "the essentials of the oral proceedings" or "the relevant statements made by the parties" has to be determined by reference to what the board has to decide (see T 966/99" . Moreover, "no single party can be permitted to [...] influence the content of the minutes" referring T1721/07. 
• The applicant had requested the Board to put in the minutes that "The primary examiner entrusted with the examination of the present application and the pending divisional application attended the Appeal Board hearing". However, the Board did not ask the attending member of the public at issue to identify himself and did not put the statement in the minutes.

EPO T 2370/16 -   link



7. Request for inclusion of a statement in the minutes

7.1 During the oral proceedings before the board, the applicant requested that a statement presented in written form at the oral proceedings on 14 June 2019 be included in the minutes. The applicant's statement reads: "The primary examiner entrusted with the examination of the present application and the pending divisional application attended the Appeal Board hearing" (see the annex to the minutes of the oral proceedings).

7.2 According to Rule 76(1) EPC 1973, minutes of oral proceedings must contain "the essentials of the oral proceedings" and "the relevant statements made by the parties". It is within the discretion of the board what is considered "essential" or "relevant"; what constitutes "the essentials of the oral proceedings" or "the relevant statements made by the parties" has to be determined by reference to what the board has to decide (see T 966/99, Reasons 7.2.2).




7.3 Rule 76(3) EPC 1973 further stipulates that the minutes are to be authenticated by the employee responsible for drawing them up and by the employee who conducted the oral proceedings. The EPC contains no provisions providing for a party's right to have a certain statement included in the minutes.

7.4 It follows that preparing the minutes of oral proceedings before the boards is a task entrusted only to the boards which cannot be transferred or delegated, in whole or in part, to the parties; no single party can be permitted to decide on or influence the content of the minutes (see T 1721/07, Reasons 15).

7.5 Of course, a party is free to suggest the inclusion of a certain statement in the minutes if it is of the opinion that otherwise the minutes would not comply with Rule 76(1) EPC 1973. However, there is no obligation on the part of the boards to do so.

7.6 In the present case, the statement presented in written form by the applicant alleged that a certain person was part of the public attending the oral proceedings. However, this alleged fact has no bearing on the board's decision and does not, therefore, constitute an essential of the oral proceedings. Consequently, the board had no reason to include in the minutes the fact that a certain person was part of the public attending the oral proceedings and, as would be necessary to this end, to ask the person concerned for their personal data.

7.7 As a result, the applicant's request was to be refused.