T 0077/23 - Absent proprietor, new attacks oral proceedings

Key points

• The Board in translation: "The Board is aware that the argument of lack of novelty of claim 1 of auxiliary request 8 in relation to document E1 was first raised during the oral proceedings before the Board. However, for the reasons explained below, the Board cannot conclude that this violated the right to be heard (Article 113(1) EPC) of the respondent [proprietor], who was absent from the oral proceedings. 
• Opinion G 4/92: "A decision [in inter partes proceedings] 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." 
• See also point 1 of the reasons: ".... it is clear that the referred question relates to inter partes proceedings. "
• In G4/92, the divergence in the caselaw was that T 574/89 had held "that by choosing to stay away from oral proceedings the parties "had forfeited their right to present comments", and hence that "any arguments or evidence submitted by the parties present at oral proceedings" could "be used as a basis for the decision without it being relevant whether such evidence or arguments were already known to the absent parties from the written submissions or whether they could expect such evidence or arguments to be presented". On the other hand, "T 484/90 ... held that "a decision against a party duly summoned to but failing to appear at oral proceedings which is based on new evidence, such as a new document, on which that party has not had the opportunity to comment, may not be pronounced at the close of those proceedings without infringing that party's right to be heard, unless the absent party indicates that it is forfeiting this right"."
• Puzzling enough, the current Board does not cite or comment on G 4/92 and does not explain how the current decision complies with G 4/92 (viz, that the novelty attack does not involve new facts forward for the first time during the oral proceedings).
• As also noted by Daniel X Thomas on his weblog. 
• Possibly, G4/92 would be decided differently nowadays. However, as of yet, it is valid case law.

EPO 

The link to the decision is provided after the jump.

https://www.epo.org/de/boards-of-appeal/decisions/t230077du1