T 0293/25 - Oral submissions that are too complex

Key points

• "The respondent did not respond in writing to the preliminary opinion, but rather contested the conclusion mentioned above at the oral proceedings before the board. In particular, they provided detailed oral submissions as to why it was not possible to derive from a comparison of example 1 and comparative example 4 [of the patent] that features (C), (G) and (H) contributed to achieving [a technical effect]"
• "the experimental section of the patent spans 20 pages and covers not only a great number of examples and comparative examples, but also various intermediate products, with multiple parameters for each of them being presented in 8 different tables"
•  "The respondent's oral submissions lasted for about 45 minutes and mostly, if not entirely, consisted of multiple comparisons of the properties of various examples and comparative examples and pairs thereof, which had not been presented in writing before. This submission of entirely new information was so extensive and complex that it was not possible for either the board or the appellant to take detailed note of, and to understand it sufficiently to form an informed opinion thereon."" '
• "In a case where new, technically complex information is provided in oral submissions lasting 45 minutes, the challenge of taking accurate note of what is said in itself prevents the other party from adequately responding thereto. Therefore, taking the new submissions into consideratidon would have violated the appellant's right to fair proceedings. In addition, postponing the oral proceedings until a later date would have gone against the principle of procedural economy, in particular because the situation could have easily been avoided, had the respondent filed their submissions in writing in due time (cf. the principles of fair proceedings and procedural economy, which are cornerstones of the proceedings (including) before the boards, and which have to be properly balanced, according to Articles 12 et seq of the RPBA, e.g. T 2920/18, T 339/19, T 1857/19, T 1800/21)."
• "For these reasons, it was not possible to consider the new submission."
• We don't have a transcript of the hearing, but I wonder if the opponent was warned during their 45 minutes by the Board that their submissions were too complex.
• 
  

EPO 

The link to the decision is provided after the jump.

R 16/23 - On the right to oral proceedings

Key points

• This is the 13th successful petition for review, by my count. 
• The EBA corrects J 6/22, wherein the LBA had intentionally denied oral proceedings (and had dismissed the appeal), despite a valid request for oral proceedings of the applicant, in a case with a request for re-establishment for the late filing of the statement of grounds.
• Moreover, even though the underlying case is unusual, the LBA's reasoning was, though extensive on the legal points, quite generic and indeed suitable for copy/past in other (re-establishment) cases, as a TBA did in T 1874/23.
• The written reasoning of the LBA to deny the appellant's right to oral proceedings was extensive, and relied essentially on a purported 'dynamic' interpretation of Article 116, referring to the "substantial yearly number of appeals being filed and a considerable workload for the boards. Furthermore, the timely adjudication of cases has become a matter of increased interest to the stakeholders in the system, while it remains a challenge for the boards to carry out their function of effec­tively brin­ging justice to all parties within a reaso­nable time frame."
• The EBA holds, in the headnote, that "As oral proceedings had been requested by the appellant-applicant in the event that an adverse decision on the request for re-establishment of rights and on the appeal were taken, the [Legal Board of Appeal] should have arranged for the holding of oral proceedings pursuant to Article 116(1) EPC before taking any such adverse decision.
• " The failure to arrange oral proceedings constitutes a fundamental procedural defect within the meaning of Article 112a(2)(d) and Rule 104(a) EPC since, as a result, the appellant-applicant did not have the opportunity to present the case orally on the decisive issues of re-establishment of rights and the admissibility of the appeal"
• The EBA: "The second consideration referred to in the decision under review relates to aspects such as a timely adjudication of cases and the creation of legal certainty.  These are indeed aspects of great importance. The starting point is, however, that they are to be taken into account within the legal framework as provided by the legislator. In the view of the Enlarged Board, they are not sufficient on their own to justify a dynamic interpretation that would limit the scope of application of Article 116(1) EPC in such a way that a right to oral proceedings could be balanced against them."
• In addition, "As already stated in decision T 383/87, Article 116(1) EPC guarantees the right of any party to request oral proceedings, i.e. to argue its case orally before the relevant instance of the EPO. This includes the right for the party requesting oral proceedings merely to present orally what it has already submitted in writing (see also R 3/10, Reasons 2.11 confirming T 125/89, Reasons 7), without having to fear that, if it does so, the deciding body will order a different apportionment of costs for that reason alone (see also T 125/89, Reasons 7; T 383/87, Reasons 9)."
  
• The EBA's reasoning is extensive and clear. I recommend reading the entire decision. 

• The successful petitions are now: R 16/23; R11/23, R 12/21,   R3/22,  R 5/19 , R 4/17 , R 3/15, R 2/14 , R 15/11, R 3/10, R 7/09 , R 21/11 , R 16/13 (sorry  no links). See also the list here.

EPO 

The link to the decision is provided after the jump.

On oral proceedings (2025)

Key points

• Due to renewed interest, an overview of the legal literature on Article 116 - the parties' right to oral proceedings.
• The original post was published in August 2024. This is a supplemented (and corrected) version.
• There were some hiccups in saving this updated post. I apologise for any inconvenience caused to email subscribers. 
• See also the decision in case R 16/23, which was taken after this blog post was published (on 19.10.2025)

Romuald Singer, Das Neue Europäische Patentsystem, 1979, page 54:

"Besondere Bedeutung wird der mündlichen Verhandlung beigemessen (Art. 116). Sie kann in jedem Stadium des Verfahrens durchgeführt werden und findet nicht nur dann statt, wenn das Europäische Patentamt sie für sachdienlich erachtet, sondern anders als nach deutschem Patentrecht auch auf bloßen Antrag eines Beteiligten. "

Singer, EPÜ, first edition, 1989, p.497:

Anders als in manchen nationalen Patenterteilungsverfahren gibt das EPU den Beteiligten grundsätzlich einen Rechtsanspruch, eine mündliche Verhandlung im Prufungs, Einspruchs- und Beschwerdeverfahren zu verlangen; im Verfahren vor der Eingangsstelle ist dieser Anspruch beschränkt.

Aus der Fassung dieses Satzes [=Article 116(1), first sentence] in allen drei Amtssprachen ergibt sich klar, daß das EPA, falls ein Beteiligter eine mündliche Verhandlung beantragt, nicht zu prüfen hat, ob die Verhandlung sachdienlich ist. 

The same can be found in the current edition: Singer/Stauder/Luginbühl, EPÜ, 9th edition (2023) Art. 116, note 2, note 10: 

"Jedoch ergibt sich aus der Fassung dieses Satzes in allen drei Amtssprachen, dass das EPA, falls ein Beteiligter eine mündliche Verhandlung beantragt, deren Sachdienlichkeit nicht zu prüfen hat. Insbesondere können Erwägungen hinsichtlich zügiger Verfahrensführung, Billigkeit und Verfahrensökonomie nicht durchgreifen." 

On the other hand, the 9th edition discusses in note 6, decision G 2/19 (not G2/99 as the text says): "Konkret verneinte die Große Beschwerdekammer eine Verpflichtung nach Art 116 (1) Satz 1, einem Antrag auf Durchführung einer mündlichen Verhandlung stattzugeben, wenn das Verfahren einen offensichtlich unzulässigen Behelf (12) zum Gegenstand hat. ... Im Lichte dieser Rechtsprechung besteht keine Verpflichtung nach Art 116 (1) Satz 1 auf Durchführung einer mündlichen Verhandlung, wenn diese nicht der Wahrung des Anspruchs auf rechtliches Gehör nach Art 113 (1) dient."
[(12)]: Offensichtliche Unzulässigkeit eines Rechtsbehelfs liegt nach der Entscheidung G 2/19, ABl 2020, A87, vor, wenn eine zur Rechtsmitteleinlegung nicht befugte Person (ein am Verfahren nicht beteiligter Dritter) einen nach dem EPÜ nicht anerkannten Beschwerdegegenstand verfolgt. Siehe auch G 1/97, ABl 2000, 322, Nr 6 in fine: Offensichtliche Unzulässigkeit bei einem nach dem EPÜ nicht bestehendem Rechtsbehelf." 

• I disagree that no oral proceedings need to be held (even though requested by the party) when the party is given an opportunity to comment in writing. The latter is sufficient under Article 113, but no substitute under Article 116.

Mathely, Le Droit européen des brevets d'invention, 1978, page 330 (corrected quote): 

2. Le recours à la procédure orale peut encore être ordonné à la requête de l'une des parties, c'est-à-dire du demandeur, ou du breveté, d'un opposant ou d'un intervenant.

En principe, la procédure orale est obligatoirement organisée, dès que l'une des parties le demande.

A ce principe, deux exceptions sont prévues: (second oral proceedings, Receiving Section)

 

See also Eskil Waage, Principles of Procedure in European Patent Law, 2002, page 95:

This provision is one of the "Common provisions governing procedure" which apply to all the administrative departments and judicial bodies of the EPO. It sets out "an almost unqualified right to require oral proceedings to take place".7 Once a party has filed an appropriate request, a hearing must take place before the competent department. The party does not have to justify his request, and the EPO may not refuse the request even if it considers that the hearing is superfluous. A party has no obligation to present new material - facts, evidence, arguments or amendments at the hearing, and the EPO must not sanction financially a party who has requested a hearing and does nothing more than repeating orally what he has already submitted in writing.9 No considerations of procedural economy, not even a suspicion of an abuse of procedure, may stand in the way of the right of a party to be heard during oral proceedings. 10

Footnotes:

7. Singer / Lunzer EPC, Article 113.04, p. 592, and Article 116.01, p. 612: "a legal right"; Schachenmann, in Singer / Stauder EPÜ, Artikel 116, n° 5, p. 634: "ein grundlegendes, absolutes und zwingendes Verfahrensrecht". See also Davis / Cole, EIPR 1999, 609; Schmitz, Mitt. 1993, 165 (at 169); and Guidelines E-III, 2. In the 1962 Preliminary Draft (CEE IV/8221/61, Commentary to Article 75a, p. 7), it is stated that oral proceedings, once requested, become "an essential pre-condition for the decision".
8. See, e.g., T 209/88 "ROBERT BOSCH", 20.12.1989, Reasons 3.3.
9 See Kockläuner, Mitt. 1989, 30 (at 32, n° II); Schachenmann, in Singer / Stauder EPÜ, Artikel 116, n° 68, p. 644; and Schmitz, Mitt. 1993, 165 (at 168, n° 4). See also T 125/89 "SCOTT PAPER", 10.1.1991, [1992] EPOR 41, Reasons 7: "a right even to repeat known arguments or to stress arguments already brought forward".
10 See T 556/95 "CHAUM", 8.8.1996, OJ EPO 1997, 205, Reasons 4.3; T 598/88 "SCHERING",7.8.1989, Reasons 2; T 194/96 "CONOR", 10.10.1996, Reasons 2; and T 685/98 "GPT", 21.9.1998, OJ EPO 1999, 346, Reasons 6.2; see also Singer / Lunzer EPC, Article 116.02, p. 613; and Case Law, 3rd ed., p. 261.

Addition October 2025:

Schäfers in Benkard EPÜ, 1st edition, 2002, p.1380:

Wird ein Antrag auf mündliche Verhandlung erstmalig vor einem Organ des EPA gestellt, so ist eine Ablehnung so gut wie ausgeschlossen. Nur in ganz seltenen Ausnahmefällen kann ein solcher Antrag abgelehnt oder übergangen werden, ohne einen schwerwiegenden Verfahrensfehler zu begehen. Eine Ablehnung oder Überbürdung der Kosten kommt nach der Praxis der BK nur in Betracht, wenn der Antrag offensichtlich mißbräuchlich oder in der Absicht gestellt ist, das Verfahren zu verschleppen (*), [T 383/87], RsprBK 1998, 295. Ein Antrag kann auch übergangen werden, wenn der Antragstellende offensichtlich das Interesse an dem Verfahren verloren hat, auf Anschreiben des EPA nicht mehr reagiert oder Zustellungen und Ladungen, die an ihn gerichtet sind, als unzustellbar zurückkommen.

I have not identified any legal basis for "oder in der Absicht gestellt ist, das Verfahren zu verschleppen". The phrase "mit der Absicht, das Verfahren zu verschleppen" is used in T 830/91, but in connection with amended claims. I don't know if buying a bit more time is such a bad thing. 

Paterson,  The European Patent System, 2001, p.248

Generally a party to proceedings before any department or instance of the EPO has a right to an oral hearing under Article 116 EPC upon request. This is subject to two exceptions, when the appointment of such an oral hearing following a request from a party remains within the discretion of the competent department of the EPO. (emphasis in the original)

T 383/87: 

Article 116(1) EPC provides, inter alia, that "oral proceedings shall take place ... at the request of any party to the proceedings". In the opinion of the Board, this basic right conferred by the EPC to any party to the proceedings before the EPO, could therefore be refused only under most exceptional circumstances, amounting to an abuse of law, which would make it equitable to award costs against one of the parties. Even supposing the opinion of the Respondent were right concerning the quality of the appeal, this consideration alone could never be a reason for ordering a different apportionment of costs incurred within the meaning of Article 104(1) EPC. This is because Article 116(1) EPC guarantees the right of any party to request oral proceedings, i.e. to argue his case orally before the relevant instance of the EPO.

It may be that a party has the feeling that he can present his case better orally than in writing, even if he has no new arguments. It is then his genuine right to ask for oral proceedings without being inhibited by the fear of having to pay additional costs, unless the request for oral proceedings is a clear abuse of law. As no such abuse can be seen in the present case the request for a different apportionment of costs was to be refused.

T 598/88:

Hierbei [Art. 116(1) EPC] handelt es sich - abgesehen von der hier nicht zutreffenden Ausnahmebestimmung des Artikels 116 (1), Satz 2 - um eine zwingende Vorschrift des EPÜ, dergegenüber Erwägungen hinsichtlich zügiger Verfahrensführung, Billigkeit oder Verfahrensökonomie nicht durchgreifen können. (r.2, emphasis added)

Enlarged Board
Of course, G 1/97 and G2/19 identified procedures before the boards where the holding of oral proceedings was not necessary (note: I use the term 'procedures'; decision G1/97 does not explicitly say that the request at issue in that case was a proper appeal under Article 106 EPC). 
In G 2/19, the Enlarged Board held: 

"Artikel 116 (1) Satz 1 EPÜ ist vielmehr dahin einschränkend auszulegen, dass die bloße formale Position als faktischer Beteiligter am Beschwerdeverfahren nicht ausreicht, um die Durchführung einer mündlichen Verhandlung verlangen zu können, wenn der Petent [i.e. the party requesting the oral proceedings], wie hier, nicht zur Beschwerdeeinlegung befugt ist, weil er im Rechtssinne nicht am vorangegangenen Verfahren beteiligt war oder wenn er - was hier zugleich vorliegt - einen der Beschwerde nicht zugänglichen Gegenstand verfolgt. Vielmehr kann die angerufene Kammer ein solches Begehren umgehend schriftlich und, wie die Große Beschwerdekammer es in G 1/97 formuliert hat (vgl. Entscheidungsgründe Nr. 6 letzter Absatz), ohne Einhaltung weiterer prozessualer Formalitäten als unzulässig verwerfen."

G1/97 and G2/19, however, concerned exceptional cases where a procedure could hardly be called an appeal, at most because a document titled 'Notice of appeal' had been filed (and a fee paid and a letter with grounds filed); however, in both cases with a purport going well beyond the system of the appeals as set up in part VI of the EPC.

Travaux préparatoires EPC 1973
In the 1970 first preliminary draft for the EPC (established by the Intergovernmental Conference), Art.84, oral proceedings were to be held "on its own initiative or at [the applicant's] request, where it considers this to be expedient; however, the examining division "must give a hearing to the applicant on his request if it proposed to give a decision refusing the application wholly or in part".
In the 1971 second preliminary draft, oral proceedings are held upon request (before the Examining Division, only upon request if refusal is envisaged) (Article 140). 
Document BR/12 e/69, minutes of Working Party I of 24  to 28 November 1969, p.25, states that the Working Party "thought it was enough to provide that a hearing [in appeal] should take place whenever any party requested it".
Thus, the Working Party modified the proposal in the (older) first preliminary draft of 1965 of the Working Group, which specified that appeal hearings were to be held at the request of a party only when the board found it expedient. 

EPC 2000
The legislator did not amend Article 116 during the EPC 2000 revision. The minutes of the Diplomatic Conference of November 2000 do not contain any discussion of Article 116 (link). 

In fact, "contrary to Article 116, failed to arrange for the holding of oral proceedings requested by the petitioner" was included in the exhaustive list of grounds for petitions for review (Rule 104). 

This relatively recent consensus could be seen as an indication that there was no subsequent legal agreement or practice in the sense of Article 31(3) VCLT changing the interpretation of Article 116 EPC to include an implicit restriction to only those appeals where the Board believes that the oral proceedings will be helpful in its decision-making.

At any rate, such an interpretation would treat the phrase "at the request of any party to the proceedings" in Article 116(1) EPC as covering the same cases as "if it considers this to be expedient", whereas from a systematic and grammatical interpretion, "at the requst of any party" deals with cases where the Board does not find the oral proceedings expedient (as also expressed by the German language version: "entweder auf Antrag eines Beteiligten oder, sofern das Europäische Patentamt dies für sachdienlich erachtet, von Amts wegen statt.")

Dynamic interpretation
Linderfalk, in his extensive treatise on treaty interpretation, proposes on p.182 that what matters in the context of 'dynamic interpretation' is whether the term is to be interpreted as "a generic referring expression with a referent assumed by the parties to be alterable." Linder­falk, On the Interpretation of Treaties (2007), see also here.

Recent expressions of the EPC legislator's view

Rule 21(1) UPR, adopted in 2015: "Oral proceedings shall take place either at the instance of the European Patent Office if it considers this to be expedient or at the request of any party to the proceedings. However, the European Patent Office may reject a request for further oral proceedings where the parties and the subject of the proceedings are the same." (see the epi position paper)

Rule 21(2) UPR contains an exception for proceedings concerning a request for unitary effect; however, this does not mean that oral proceedings are not held in connection with a request for re-establishment of rights for a late-filed request for unitary effect. 

UPCA

Article 52 UPCA (adopted in 2013):  "The oral procedure shall give parties the opportunity to explain properly their arguments. The Court may, with the agreement of the parties, dispense with the oral hearing" (different set of states than the EPC, of course).

EHCR

Article 53 ECHR:
Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a party.

Hence, the EPC can go further than Article 6 ECHR (as interpreted by the ECtHR) - and does so, in Article 116 EPC. Any dynamic interpretation of Article 6 ECHR (in particular, any perceived reduction of the right afforded in the newer case law of the ECHR (compare, in connection with the 'criminal limb' of Article 6 ECHR,  R. Goss, The Disappearing ‘Minimum Rights’ of Article 6 ECHR: the Unfortunate Legacy of Ibrahim and Beuze, 2023 (link, open access), does not force the EPO to diminish the rights of parties under Article 116 EPC.

Furthermore, in the ECtHR decision of Dory v Sweden (12.11.2022):  "The Court notes that no hearing was held at first instance since the applicant did not request the County Administrative Court to hold one. It acknowledges that, in the interests of the proper administration of justice, it is normally more expedient that a hearing is held already at first instance rather than only before the appellate court. Depending on the circumstances of the case, it might therefore be acceptable to reject a request for a hearing upon appeal, although no such hearing has been held at first instance." and "the applicant, in the decisions rejecting her requests for oral hearings, was invited by the appellate court to submit final observations in writing" (https://hudoc.echr.coe.int/eng?i=001-60737  ) 

T 1544/22 - To which the parties have an absolute right under Article 116 EPC

Key points

• The catchword of the decision is that "Submissions which are merely a refinement of arguments previously submitted and which further illustrate a party's position, must be allowed even if they are late filed." (comma omitted). 
• This is in agreement with the landmark decision J 14/19 (r.1.8) on the RPBA 2020, but is good to see it recalled by the Board.
• Also interesting: "In particular, oral proceedings, to which the parties have an absolute right under Article 116 EPC, would serve no purpose if such refinements were not allowed (see also decision T 247/20, Reasons point 1.3)."

EPO 

The link to the decision can be found after the jump.

Pending R 16/23 - The right to oral proceedings

Key points

• Petition for review R 16/23 was forwarded to the Enlarged Board in a five-member composition. The petition for review concerns decision J 6/22 where the Legal Board did not hold oral proceedings although these were requested and decided to reject the request for re-establishment for the late filing of the Statement of grounds of appeal. 
• The petition for review is in the public part of the file here. A well-known patent attorney firm is handling the case. 
• In the end, the request for re-establishment is based (at least at the root) on a burn-out of a European patent attorney who is referred to in the petition for review as Ms. K. This  elegantly allows the petition for review to be visible in the public part of the online file.
• Oral proceedings are scheduled for 21 November 2025 by video conference and will be public - see the summons here.
• The Legal Board furthermore issued no preliminary opinion in advance. That is argued to be a separate procedural violation (Art. 113(1) EPC). So, perhaps that will be the focus of the debate.

On oral proceedings (legal literature)

Key points

• Can a Board of Appeal reject an appeal without holding oral proceedings where these are timely requested by the appellant, in a case where the appellant maintains the request and intends to attend the oral proceedings, and where the appeal was filed by the applicant and is not an appeal against an earlier decision of a Board of Appeal (e.g. unlike the cases of G 1/97 respectively G2/19)?

To quote Romuald Singer, Das Neue Europäische Patentsystem, 1979, page 54:

"Besondere Bedeutung wird der mündlichen Verhandlung beigemessen (Art. 116). Sie kann in jedem Stadium des Verfahrens durchgeführt werden und findet nicht nur dann statt, wenn das Europäische Patentamt sie für sachdienlich erachtet, sondern anders als nach deutschem Patentrecht auch auf bloßen Antrag eines Beteiligten. "

Singer, EPÜ, first edition, 1989, p.497:

Anders als in manchen nationalen Patenterteilungsverfahren gibt das EPU den Beteiligten grundsätzlich einen Rechtsanspruch, eine mündliche Verhandlung im Prufungs, Einspruchs- und Beschwerdeverfahren zu verlangen; im Verfahren vor der Eingangsstelle ist dieser Anspruch beschränkt.

Aus der Fassung dieses Satzes [=Article 116(1), first sentence] in allen drei Amtssprachen ergibt sich klar, daß das EPA, falls ein Beteiligter eine mündliche Verhandlung beantragt, nicht zu prüfen hat, ob die Verhandlung sachdienlich ist. 

Mathely, Le Droit européen des brevets d'invention, 1978:

2. Le recours à la procédure orale peut encore être ordonné pendant l'ins à la requête de l'une des parties, c'est-à-dire du demandeur. rocédure, dan ou du breveté, d'un opposant ou d'un intervenant.

En principe, la procédure orale est obligatoirement orga- nisée, dès que l'une des parties le demande.

A ce principe, deux exceptions sont prévues: (...)

 

See also Eskil Waage, Principles of Procedure in European Patent Law, 2002, page 95:

This provision is one of the "Common provisions governing procedure" which apply to all the administrative departments and judicial bodies of the EPO. It sets out "an almost unqualified right to require oral proceedings to take place".7 Once a party has filed an appropriate request, a hearing must take place before the competent department. The party does not have to justify his request, and the EPO may not refuse the request even if it considers that the hearing is superfluous. A party has no obligation to present new material - facts, evidence, arguments or amendments at the hearing, and the EPO must not sanction financially a party who has requested a hearing and does nothing more than repeating orally what he has already submitted in writing.9 No considerations of procedural economy, not even a suspicion of an abuse of procedure, may stand in the way of the right of a party to be heard during oral proceedings. 10

Footnotes:

7. Singer / Lunzer EPC, Article 113.04, p. 592, and Article 116.01, p. 612: "a legal right"; Schachenmann, in Singer / Stauder EPÜ, Artikel 116, n° 5, p. 634: "ein grundlegendes, absolutes und zwingendes Verfahrensrecht". See also Davis / Cole, EIPR 1999, 609; Schmitz, Mitt. 1993, 165 (at 169); and Guidelines E-III, 2. In the 1962 Preliminary Draft (CEE IV/8221/61, Commentary to Article 75a, p. 7), it is stated that oral proceedings, once requested, become "an essential pre-condition for the decision".
8. See, e.g., T 209/88 "ROBERT BOSCH", 20.12.1989, Reasons 3.3.
9 See Kockläuner, Mitt. 1989, 30 (at 32, n° II); Schachenmann, in Singer / Stauder EPÜ, Artikel 116, n° 68, p. 644; and Schmitz, Mitt. 1993, 165 (at 168, n° 4). See also T 125/89 "SCOTT PAPER", 10.1.1991, [1992] EPOR 41, Reasons 7: "a right even to repeat known arguments or to stress arguments already brought forward".
10 See T 556/95 "CHAUM", 8.8.1996, OJ EPO 1997, 205, Reasons 4.3; T 598/88 "SCHERING",7.8.1989, Reasons 2; T 194/96 "CONOR", 10.10.1996, Reasons 2; and T 685/98 "GPT", 21.9.1998, OJ EPO 1999, 346, Reasons 6.2; see also Singer / Lunzer EPC, Article 116.02, p. 613; and Case Law, 3rd ed., p. 261.

Addition October 2025:

Schäfers in Benkard EPÜ, 1st edition, 2002, p.1380:

Wird ein Antrag auf mündliche Verhandlung erstmalig vor einem Organ des EPA gestellt, so ist eine Ablehnung so gut wie ausgeschlossen. Nur in ganz seltenen Ausnahmefällen kann ein solcher Antrag abgelehnt oder übergangen werden, ohne einen schwerwiegenden Verfahrensfehler zu begehen. Eine Ablehnung oder Überbürdung der Kosten kommt nach der Praxis der BK nur in Betracht, wenn der Antrag offensichtlich mißbräuchlich oder in der Absicht gestellt ist, das Verfahren zu verschleppen, EPA v. 26. 4. 1989, T 383/87, Oriented polypropylene/Mobil Oil, Egr. 9, RsprBK 1998, 295. Ein Antrag kann auch übergangen werden, wenn der Antragstellende of-fensichtlich das Interesse an dem Verfahren verloren hat, auf Anschreiben des EPA nicht mehr reagiert oder Zustellungen und Ladungen, die an ihn gerichtet sind, als unzustellbar zurückkommen.

Paterson,  The European Patent System, 2001, p.248

Generally a party to proceedings before any department or instance of the EPO has a right to an oral hearing under Article 116 EPC upon request. This is subject to two exceptions, when the appointment of such an oral hearing following a request from a party remains within the discretion of the competent department of the EPO. (emphasis in the original)

T 383/87: 

Article 116(1) EPC provides, inter alia, that "oral proceedings shall take place ... at the request of any party to the proceedings". In the opinion of the Board, this basic right conferred by the EPC to any party to the proceedings before the EPO, could therefore be refused only under most exceptional circumstances, amounting to an abuse of law, which would make it equitable to award costs against one of the parties. Even supposing the opinion of the Respondent were right concerning the quality of the appeal, this consideration alone could never be a reason for ordering a different apportionment of costs incurred within the meaning of Article 104(1) EPC. This is because Article 116(1) EPC guarantees the right of any party to request oral proceedings, i.e. to argue his case orally before the relevant instance of the EPO. it may be that a party has the feeling that he can present his case better orally than in writing, even if he has no new arguments. It is then his genuine right to ask for oral proceedings without being inhibited by the fear of having to pay additional costs, unless the request for oral proceedings is a clear abuse of law. As no such abuse can be seen in the present case the request for a different apportionment of costs was to be refused.

T 598/88:

Hierbei [Art. 116(1) EPC] handelt es sich - abgesehen von der hier nicht zutreffenden Ausnahmebestimmung des Artikels 116 (1), Satz 2 - um eine zwingende Vorschrift des EPÜ, dergegenüber Erwägungen hinsichtlich zügiger Verfahrensführung, Billigkeit oder Verfahrensökonomie nicht durchgreifen können. (r.2, emphasis added)

Enlarged Board
Of course, G 1/97 and G2/19 identified cases where the holding of oral proceedings was not necessary (note: I use the term cases; G1/97 does not explicitly say that the request at issue in that case was a proper appeal under Article 106 EPC). 
In G 2/19, the Enlarged Board held: 

"Artikel 116 (1) Satz 1 EPÜ ist vielmehr dahin einschränkend auszulegen, dass die bloße formale Position als faktischer Beteiligter am Beschwerdeverfahren nicht ausreicht, um die Durchführung einer mündlichen Verhandlung verlangen zu können, wenn der Petent [i.e. the party requesting the oral proceedings], wie hier, nicht zur Beschwerdeeinlegung befugt ist, weil er im Rechtssinne nicht am vorangegangenen Verfahren beteiligt war oder wenn er - was hier zugleich vorliegt - einen der Beschwerde nicht zugänglichen Gegenstand verfolgt. Vielmehr kann die angerufene Kammer ein solches Begehren umgehend schriftlich und, wie die Große Beschwerdekammer es in G 1/97 formuliert hat (vgl. Entscheidungsgründe Nr. 6 letzter Absatz), ohne Einhaltung weiterer prozessualer Formalitäten als unzulässig verwerfen."

G1/97 and G2/19, however, concerned exceptional cases where a procedure could hardly be called an appeal, at most because a document titled 'Notice of appeal' had been filed (and a fee paid and a letter with grounds filed); however, in both cases with a purport going well beyond the system of the appeals as set up in part VI of the EPC.

Travaux préparatoires EPC 1973
In the 1970 first preliminary draft for the EPC (established by the Intergovernmental Conference), Art.84, oral proceedings were to be held "on its own initiative or at [the applicant's] request, where it considers this to be expedient; however, the examining division "must give a hearing to the applicant on his request if it proposed to give a decision refusing the application wholly or in part".
In the 1971 second preliminary draft, oral proceedings are held upon request (before the Examining Division, only upon request if refusal is envisaged) (Article 140). 
Document BR/12 e/69, minutes of Working Party I of 24  to 28 November 1969, p.25, states that the Working Party "thought it was enough to provide that a hearing [in appeal] should take place whenever any party requested it".
Thus, the Working Party modified the proposal in the (older) first preliminary draft of 1965 of the Working Group, which specified that appeal hearings were to be held at the request of a party only when the board found it expedient. 

EPC 2000
The legislator kept Article 116 the same as part of the EPC 2000 revision. I'm unaware of any debate about the right to oral proceedings in the context of preparing EPC 2000. This relatively recent consensus could be seen, perhaps, as an indication that there was no subsequent legal agreement or practice changing the interpretation of Article 116 EPC in the sense of Article 31(3) VCLT.
The minutes of the Diplomatic Conference of November 2000 do not seem to contain any discussion of Article 116 (link). 

Dynamic interpretation
Linderfalk, in his extensive treatise on treaty interpretation, proposes on p.182 that what matters in the context of 'dynamic interpretation' is whether the term is to be interpreted as "a generic referring expression with a referent assumed by the parties to be alterable." Linder­falk, On the Interpretation of Treaties (2007), see also here.

Recent expressions of the legislator's view

Rule 21(1) UPR, adopted in 2015:  "Oral proceedings shall take place either at the instance of the European Patent Office if it considers this to be expedient or at the request of any party to the proceedings. However, the European Patent Office may reject a request for further oral proceedings where the parties and the subject of the proceedings are the same." Rule 21(2) UPR contains an exception for proceedings concerning a request for unitary effect. 

T 2020/20 - Change of ED composition between OP and decision taken in writing

Key points

•  "At the end of the oral proceedings, the examining division informed the appellant that it could expect a communication pursuant to Rule 71(3) EPC on the basis of auxiliary request 2, provided that a clean copy of the application documents was filed."
• "On 21 August 2019, the examining division issued a third communication pursuant to Rule 71(3) EPC expressing its intention to grant a European patent based on auxiliary request 2. In an annex, the examining division set out the reasons why it had admitted the third-party observations and why it considered the claims of the main request and auxiliary request 1 to be unclear and thus not allowable."
• " By letter dated 20 December 2019, the appellant indicated that it did not approve the text proposed for grant in the third communication pursuant to Rule 71(3) EPC. It requested a decision which could be appealed if the examining division was not able to grant a patent based on either the main request or auxiliary request 1."'
• "On 25 June 2020, the examining division issued the decision under appeal. The reasoning given for the admittance of the third-party observations and the non-allowability of the main request and auxiliary request 1 is an almost verbatim copy of the reasoning annexed to the third communication pursuant to Rule 71(3) EPC. Compared to the composition of the examining division which had conducted the oral proceedings and which had issued the third communication pursuant to Rule 71(3) EPC, the composition of the examining division which signed the decision under appeal was changed: the first examiner was no longer part of the division, the previous chairman had become the first examiner and a new chairman had been appointed."
• "It is established case law that a signed written decision issued after oral proceedings should be taken by the same members of the first-instance division who conducted the oral proceedings. If a change in the composition of the division occurs after oral proceedings, parties should therefore be offered new oral proceedings."
• "According to Article 18 EPC, oral proceedings should be held before the examining division itself. The right under Article 116(1) EPC to have oral proceedings can therefore only mean a right to have oral proceedings before the examining division in a composition which also takes the final decision on the case. If the division conducting the oral proceedings could be different from that taking the final decision, oral proceedings would be deprived of its purpose and Article 116(1) EPC would be meaningless."
• The decision is set aside, and the appeal fee is reimbursed.
• Compare T 0229/18, where the Chair of the Board retired between the oral proceeding and the issuing of the written decision. These two decisions may not be inconsistent with each other, but it is a rather delicate balance. 

EPO 

The link to the decision is provided after the jump, as well as (an extract of) the decision text.

T 2024/21 - The right to oral proceedings

Key points

• The ED refused the application. "The examining division noted as follows: "With respect to the so far missing summons to oral proceedings, as commented by the Applicant: Please note that it is the duty of the Applicant (not of three members of the European Patent Office) to fulfill the requirements of the EPC, to adapt the description appropriately and to provide an admissible and agreeable claim text which is adequate to provide remedy (with promise of success) and with which consensus can be achieved (Rule 137(3) EPC); a consensus (or at least an adequate approach) which is worth to spend the time and costs in oral proceedings. Please further note that oral proceedings increase the workload for three members of the Examining Division and not "reduce" it as supposed by the Applicant. Please further note that a proper amendment should be present as a first step for the Examining Division to do the next step, be it oral proceedings or to give consent. In such a case the Examining Division might be in the position to adequately and positively support the interests of the Applicant. Please further note that from the beginning, id est since the first amendments of the Applicant were submitted, the basic requirements of Article 123(2) were not met. Formulating an allowable claim text, also, is not the duty of an Examining Division." 
• The applicant then withdrew the request for oral proceedings.
• The Board 3.2.06: "According to established case law the right to an oral hearing is an extremely important procedural right which the EPO should take all reasonable steps to safeguard (T 668/89, T 808/94, T 556/95, T 996/09, T 740/15). If a request for oral proceedings has been made, such proceedings have to be appointed. This provision is mandatory and leaves no room for discretion (T 283/88, T 795/91, T 556/95, T 1048/00, T 740/15), i.e. parties have an absolute right to oral proceedings. Considerations such as the speedy conduct of the proceedings, equity or procedural economy cannot take precedence over this right (cf. Case Law of the Boards of Appeal, 10th edition, III.C.2.1)."
• Obviously, the Legal Board may disagree, in view of the remarkable (and concerning) decision J 6/22, and it will be for the Enlarged Board in the pending petition for review R 16/23 against J6/22 to settle the matter. 
• The present Board, politely it seems: "It should be noted in passing that a discussion of the recent decision J 6/22 does not appear necessary in the context of the present case, as this decision endorses, according to the understanding of the present Board, a restrictive interpretation of the right to oral proceedings for very specific procedural circumstances. However, a dynamic interpretation restricting explicitly regulated procedural rights of the parties does not seem to be considered in J 6/22 for the central area of the European grant procedure." 
• " The reasoning contained in the contested decision (by reference to the communication of 25 January 2021, see point IX. above) is thus based on a manifestly incorrect understanding of the right to oral proceedings as enshrined in the EPC. The fact that oral proceedings cause costs is anyway no reason not to comply with the appellant's repeatedly expressed wish to hold oral proceedings. The reminder in the contested decision of the applicant's duty to submit an EPC-compliant version of the application documents is also no reason not to comply with a request for oral proceedings."
• " Nor is the repeated indication in the examining division's communications that amendments would not be admitted to the proceedings or had not been admitted under Article 137(3) EPC, so that no version of the application documents approved by the applicant would exist in the proceedings, a sound reason for not holding oral proceedings. Even if the examining division considered the possibility of not admitting amended application documents into the proceedings, oral proceedings would still have had to be held in the present case in order to discuss (at least) the question of (non-)admittance of the amendments with the applicant, which would have also comprised the issue of whether the objections raised by the examining division had been overcome by the amendments (see below point 1.4)."
• "The Board thus considers that withdrawal of the request for oral proceedings under these particular circumstances did not therefore absolve the examining division from its duty to hold the originally requested oral proceedings. In this context, it must also be taken into account that the examination procedure had already lasted several years and it is immediately recognisable that the appellant was given no other way out in order to obtain an appealable decision. "
• "In view of the overall course of the examination proceedings it is to be noted that although the appellant ultimately withdrew its request for oral proceedings and requested a decision on the state of the file, it was deprived of its right to be heard in oral proceedings as enshrined in Articles 113(1) and 116(1) EPC. Due to this substantial procedural violation, the contested decision had to be set aside."
• The case is remitted. 

EPO 

The link to the decision is provided after the jump, as well as (an extract of) the decision text.

T 3277/19 - Video oral proceedings

Key points

• The Board held the oral proceedings on premises despite the request for vico oral proceeding in this opposition appeal.
•  "The Board found that the subject-matter of the proceedings involved complex explanations of the duct's geometry in relation to the visualisation of several virtual planes and intersections, which made in-person proceedings the appropriate format to be used in the present case. This was already explained in item 9 of the Board's communication pursuant to Article 15(1) RPBA 2020 and the parties did not further comment on this at the oral proceedings."
• " Notably, in the oral proceedings itself flipchart drawings (see the minutes) using various colours and simultaneous explanations while developing the drawings on several occasions were made by the appellant, which the Board considers merely confirms why in-person oral proceedings was the appropriate format for these proceedings, despite both parties requesting oral proceedings by videoconference. Whilst drawings or sketches supporting or helping to illustrate oral submissions could also be made at oral proceedings held by videoconference in a different way, e.g. by sharing the screen or by using the whiteboard, the Board considered in-person oral proceedings the more appropriate and efficient format in the circumstances of the present case, not least since it expected lengthy discussions on issues for which such visual aids might be referred to often and extensively."
• As a comment, the Board clearly articulates case-specific reasons for holding oral proceedings in person against the wishes of the parties. 

EPO 

The link to the decision is provided after the jump, as well as (an extract of) the decision text.

T 1103/21 - 15 minutes oral proceedings

Key points

•  The proprietor files amended claims in appeal.
• The proprietor had filed no reply at all in the first instance proceedings and the patent was revoked without oral proceedings and without preliminary opinion of the OD.
• The proprietor does not invoke a substantial procedural violation, so probably they had received the notification of the notice of opposition.
• The Board: " Throughout the appeal proceedings, the appellant has not indicated any specific circumstances of the appeal case that could justify the admittance of the new requests into the appeal proceedings within the meaning of Article 12(6) RPBA. In its communication pursuant to Article 15(1) RPBA, the board had already announced the expected non-admittance of the main request and the auxiliary request (see paragraph III above and the respective communication of the board under point 11). However, the appellant did not provide any justification either in writing or at the oral proceedings."
• Hence, the appeal is admissible, but all requests are inadmissible.
• 
  
• The oral proceedings before the Board lasted 15 minutes and were held by vico. Both parties attended.
• The possibility of holding short oral proceedings seems a great advantage of vico. In this way, it is unambiguously clear that the proprietor was aware of the appeal and had nothing to add and the right to oral proceedings was complied with in the most efficient manner.*
• (* - without prejudice to the possible right to in-person oral proceedings outside pandemics). 
• 
  

EPO 

The link to the decision is provided after the jump, as well as (an extract of) the decision text.

R 0013/22 - Patent revoked, opponent unhappy & diagnostic method

Key points

• The opponent was "European Society of Human Reproduction & Embryology". The title of the patent is "IMAGING AND EVALUATING EMBRYOS, OOCYTES, AND STEM CELLS." 
• The OD has ex officio raised an objection based on Art.53(a) with R.28(c) EPC regarding the commercial use of human embryos.
• In the decision, the OD found that the ground of Art.53(a) did not apply because there is a distinction in the EU biotech directive between inventions for diagnostic purposes applied to human embryos and useful to it, the latter not excluded from patentability.
• O2 raised an objection regarding Art.53(c), diagnostic methods.
• The OD found the claim to be allowable under Art.53(c) because the "third step"  of G 1/04, of diagnosis stricto sensu is not recited in the claim (this is the step that is a " purely intellectual exercise" according to G 1/04, but if you omit it from the claim, there is no objection under the diagnostic method prong of Art.53(c).
• Hence, the OD concluded the claim is allowable under Art.53(a) because it is a diagnostic method and, at the same time, found that it is not a diagnostic method and therefore allowable under Art.53(c). I refrain from comments on this point. 
• Claim 1 as granted is directed to:  "A method for assessing good or poor developmental competence of a human embryo". I have not studied what the patent suggests doing in case of poor developmental competence (potential in the application as filed) of an embryo, though the embryo appears to be in vitro when it is subjected to the measurements. 
• The proprietor disapproves the text of the patent shortly before the hearing in appeal. There was no preliminary opinion of the Board on the issue of Art.53.
• The opponent/appellant expressly requests oral proceedings and a decision on the issue of Art.53
• The Board revokes the patent under Art.113(2)  without giving reasons on Art.53.
• The opponent files a petition for review.
• The Enlarged Board: "The Enlarged Board is thus of the view that the non-holding of the oral proceedings, the non-consideration of the Article 53 EPC objection, and the non-referral of questions to the Enlarged Board of Appeal cannot be considered to have resulted in any prejudice to the Petitioner that would lead to the Petitioner being adversely affected by the decision to revoke the patent within the meaning of Article 112a(1) EPC." 
• " For a board to refer questions to the Enlarged Board of Appeal under Article 112a EPC certain conditions need to be fulfilled. Amongst these conditions is that the referral questions must not have merely theoretical significance. An example of such theoretical questions would be if the board could reach the same decision regardless of the answer (see G 3/98, para 1, and T 547/08, para 4, last para). Some further conditions are that the questions must be relevant for deciding the case in question (see T 2136/16, para 8.1 to 8.3); and that the answer to the referred questions must be essential for the board to reach a decision on the appeal in question (see T 154/04, para 2). None of these conditions apply in the present case. The Board was able to revoke the patent without needing an answer to the referral questions submitted by the Petitioner."
• As a comment, should proprietors withdraw all claim requests that the Boards consider unallowable if such withdrawal is procedurally possible at the end of oral proceedings (and if a petition for reviews is not considered) to avoid the creation of unfavourable case law?

EPO 

The link to the decision is provided after the jump, as well as (an extract of) the text of the decision.

T 2303/19 - The optimum format for oral proceedings

Key points

•  "The appellant's reasons for requesting that the oral proceedings take place by videoconference were two-fold. Firstly, this format would facilitate attendance at the hearing by the appellant's in-house counsel. Secondly, it would reduce the risk of any last minute travel disruption which may occur due to the uncertainty surrounding Covid-19 cases."
• "The Board agrees with the respondent that at the relevant time there were no Covid-19 related travel restrictions which would impair the parties' possibilities to attend in person oral proceedings at the EPO premises, and that in person oral proceedings are for now the optimum format as expressed in decision G 1/21.":
• "The Board also considers that the possible attendance of an accompanying person cannot determine the format of the oral proceedings. The Board thus decided that the oral proceedings take place in person."
• 
  

EPO 

The link to the decision is provided after the jump, as well as (an extract of) the text of the decision.

T 0625/21 - The Examiner uses email

Key points

•  This is an appeal against a refusal decision.
• "After reviewing the decision under appeal and the examination proceedings leading to it, the board notes that it is evident that the examiner entrusted with the examination of the application made some effort to engage in dialogue with the applicant. The examiner made use of different communication channels - written communications, emails and telephone conversations - and last but not least they offered the oral proceedings which the applicant had requested. All this can be seen from both the impugned decision and the appellant's statement setting out the grounds of appeal. The latter mentions the examiner's emails dated 10 October 2019 and 26 October 2020 which cannot be found in the public part of the file."
• "anything not in the public part of the file cannot be reviewed by the board because this part of the correspondence, and what was allegedly discussed in that context, remains unknown. The board simply has no way of forming its opinion on these aspects."
• I always thought the Board had access to the non-public part of the file. I suppose that back in the days of paper files, simply the whole folder was supplied to the Board.
• I suppose that the emails at issue are not even part of the formal non-public part of the file.
• As a separate issue, "The applicant decided not to attend the oral proceedings, arguing that an applicant should not have to attend oral proceedings just to know what the examining division's case is."
• "The board has some sympathy for this argument. Nevertheless, oral proceedings give applicants the opportunity to address not only the examiner entrusted with the examination of the application but all members of the examining division simultaneously (Article 18(2), third sentence, EPC). Therefore, the case would have been discussed with the entire examining division."
• "As explained in R 3/10 (reasons for the decision, point 2.11), the purpose of oral proceedings is to allow a party to make an oral presentation of its arguments, to allow the board (or the deciding instance) to ask questions, to allow the party to respond to those questions and to allow controversial and perhaps crucial issues to be discussed. 
• "Therefore, by choosing not to attend the oral proceedings, the applicant missed an opportunity to advance the case in a discussion with the entire examining division."
• As a comment,  G 4/92 "explicitly relates to inter partes proceedings only". (link)
• As mentioned in CLBA III.B.2.7.2: " In T 1448/09 refusal of the European patent application was based on the common general knowledge as illustrated by document D3. That stance was first taken in the oral proceedings before the examining division, which the appellant did not attend. According to G 4/92, arguments could be presented at any time, even during oral proceedings in the absence of a party, but the same did not apply to new facts forming the basis for a decision. A reference to the common general knowledge could be presented as an argument, but the existence of that knowledge was a matter of fact. If its alleged existence was disputed, the facts relevant in that regard had to be established. That meant that the party against which this knowledge was cited had to have the opportunity to dispute or accept it. In the case in hand, the appellant had neither been aware of the examining division's invocation of the common general knowledge nor of the existence of document D3 until the decision was announced. This violated the appellant's right to be heard on the relevance of document D3 and, by extension, on the existence of the invoked common general knowledge." 
• Still, there was a substantial procedural violation: "From the entire written file under scrutiny on appeal, there is no indication that the examining division carefully considered the applicant's (most) significant or central argument. In particular, there is no explanation as to why it is incorrect, not convincing or immaterial for other reasons. Instead, the examining division merely repeated its view that the feature of the last paragraph of claim 1 did not impose a restriction on the flavour additive."
• Moreover: "The examining division did not explain the facts or considerations on which it based its conclusion []. What is more, by making this statement, the examining division presented yet another conclusion that failed to consider the applicant's (most) significant or central argument. Therefore, the division failed to explain, in a logical chain, the reasons for arriving at this conclusion."

EPO T 0625/21 

The link to the decision is provided after the jump, as well as (an extract of) the text of the decision.

T 2526/19 - ViCo's forever

Key points

• "Two weeks ahead of the scheduled oral proceedings before the board, the hearing was converted to VICO-based oral proceedings under Article 15a(1) RPBA."
•  "[The] compliance of Article 15a RPBA with the EPC has not been questioned by the Enlarged Board of Appeal in case G 1/21, whether or not a "general emergency" applies. Article 15a RPBA thus remains applicable, without any qualification, to these and future appeal proceedings."
• I refrain from commenting on this T decision except for citing G 1/21: "a hearing in person is the optimum format or, to use a term well known in the field of European patent law, it is the gold standard. It definitely fulfils the requirements of Article 113 EPC and Article 6 ECHR. It is also the format that the legislator had in mind when drafting Article 116 EPC. Therefore, in-person hearings should be the default option. Parties can only be denied this option for good reasons."

EPO T 2526/19

The link to the decision is provided after the jump, as well as (an extract of) the text of the decision.

T 1564/18 - Oral proceedings Ex Div in absence

 Key points

•  The Board essentially finds the refusal decision to be an unallowable surprise decision. 
• The ED cited D6, fig. 3-8 as anticipating claim 1 in a Communication under Art. 94(3). In the summons to the oral proceedings, again Fig. 3-8 of D6 were cited. Oral proceedings were held in the absence of the applicant who had announced that they would not attend.
• In the refusal decision, Fig. 1 and 2 of D6 were cited as anticipating claim 1 of the main request. These figures are described as "conventional art" in D6.
• The Board: "As the appellant had decided not to be present at the oral proceedings, it had relied solely on its written arguments. In such a case, the appellant's right to be heard is not violated if the examining division raises new foreseeable objections against new subject-matter submitted before the oral proceedings, including citing different passages of a document for newly-introduced features. However, in the present case the board cannot recognise such a reason for changing the closest prior art to the disclosure of Figure 1 of document D6. The main request considered  in the decision under appeal did not differ significantly from the previous sole request on file (only the expression [feature omitted] had been added at the end of claim 1), and in its reasoning the examining division did not justify why it had relied on a different part of document D6."
  
• " the board concludes that neither the annex to the summons nor any of the previous communications of the examining division contained the essential legal and factual reasons leading to the finding in the appealed decision that claim 1 of the main request lacked novelty over the prior art cited for the first time to refuse the application." 
• As a comment, although the Board seems to have a point, I find it confusing that the Board refers to "changing the closest prior art to the disclosure of Figure 1 of document D6" even though the rejection of the main request was for lack of novelty. 
• The Board: "Moreover, it is not possible to establish from the decision under appeal whether or why the amendments made in advance of the oral proceedings held in absentia justified the change to a new closest prior art. The decision was therefore issued in violation of Article 113(1) EPC." 
• The basic thrust seems correct, but again it is unfortunate to refer to "new closest prior art" when talking about novelty. On the other hand, I'm not sure if there is established terminology for the "equivalent" of "the closest prior art"  under novelty.
• As a further comment, provided that amendments made just before the oral proceedings were the normal kind of narrowing claim amendments, the Examining Division could have cited figures 1 and 2 as novelty-destroying in addition to the alleged novelty destroying figures 3-8. In other words, for novelty, it's not so much a matter of "changing the closest prior art", but adding new novelty objections (based on Figures 1 and 2) possibly in combination with abandoning earlier novelty objections (based on Figures 3-8). 
• G 4/92 does not apply to ex parte cases. The EPO's current practice regarding applicants staying away from oral proceedings before the Examining Division is described in  OJ 2020 A124. Whether the present decision puts a gloss on that Notice, can be left as an exercise for the reader. I also note that the present decision does not cite Rule 115(2) EPC.
• 
  

EPO Headnote

Since neither the annex to the summons nor any of the previous communications of the examining division contained the essential legal and factual reasons leading to the finding in the appealed decision that claim 1 of the main request lacked novelty over the prior-art device considered for the first time in the novelty assessment of the refusal, and since no reason was given why the amendments made in advance of the oral proceedings held in absentia justified the change to this new closest prior art, the decision was issued in violation of the right to be heard even though the prior-art device on which the refusal was based was disclosed in the same document as a closest prior art considered previously in the examination procedure.

T 2282/16 - Art.123(2) and US style dependent claims

Key points

•  First, about vico oral proceedings: "Both parties expressed their preference for in-person oral proceedings. Nonetheless, in view of the ongoing Covid-19-pandemic and the potential risks of infection and impediments in travelling, the Board decided to hold the oral proceedings by videoconference, applying its discretion under Article 15a(1) RPBA 2020. Since both parties accepted this format, there is no need for the Board to give more detailed reasoning for its decision."
• Note, the Board does not refer to G 1/21. The decision was taken 21.12.2021. The Board identifies a  "discretion" to hold vico oral proceedings without discussing in any way whether the requirements of G 1/21 are met.
• As to Article 123(2) and whether the claims as filed provide basis: " Claims 5 and 7 as filed are each only dependent on claim 1, but not on each other. They are thus not directly linked to each other by the claim structure. Such claims therefore do not form a direct and unambiguous basis for deriving a claim to their combination. This is also in line with established case law (see e.g. T 1362/15, Reasons 4). Therefore, the claims do not provide a literal, and thus explicit basis for a method [as defined in claim 1 as granted]"
• "The proprietor's further argument that multiple dependencies were not allowed or at least not common when drafting applications that covered the US, and the claim structure was to be interpreted before such background, is also not accepted. There being no general prohibition of multiple dependencies in US patent law, the applicant could have claimed the combination either in a dependent claim having multiple dependencies or by a further independent, more restricted claim. As there are not even claim fees due in the PCT procedure (noting that the application as filed is a PCT application), it is equally possible that not having formulated claim 7 to be dependent on claim 5 was simply the deliberate choice of the applicant. Any conclusion as to the intention of the applicant at the time of filing is mere speculation and thus not something directly and unambiguously derivable."
• "The Board therefore finds that claims 5 and 7 of the application as filed relate simply to two different concepts, each of which defines a separate fallback position. The skilled person would thus not derive their combination directly and unambiguously from the set of claims as filed.'
• 
  

EPO T 2282/16 -

The link to the decision is provided after the jump, as well as (an extract of) the text of the decision.

T 1051/20 - Substantial procedural violation, no OP Board necessary

Key points

•  The Board finds a substantial procedural violation in that the refusal decision does not discuss two auxiliary requests filed by the applicant during the oral proceedings before the ED.
• The Board decides to remit the case.
• “ The appellant requested oral proceedings before the board in the event that the board considers not to grant a patent based on the present main request.”
• Clearly, the Board does not order the grant of the patent, rather a remittal for further substantive examination. Are oral proceedings before the Board necessary under Art.116?
• “The board recalls that a request for oral proceedings under Article 116(1) EPC must be granted if it is envisaged that a final decision might be issued which is adverse to the party making that request (see e.g. T 47/94, Reasons 6). However, it is established jurisprudence that a remittal of an appeal case without any consideration of the substantive issues is not to be considered as being adverse to a party, so that no hearing before the board is deemed necessary or appropriate solely to discuss whether or not such case should be remitted (see e.g. T 42/90, Reasons 5; T 166/91, Reasons 7; T 315/92, Reasons 5; T 47/94, Reasons 6; T 1727/12, Reasons 3).”

EPO  T 1051/20 -

The link to the decision is provided after the jump, as well as (an extract of) the text of the decision.

T 0466/20 - Change OD composition in the course of oral proceedings

 Key points

•  This is an unusual case. 
• The OD held first oral proceedings:  "After [the Chair] had informed the parties of the opposition division's conclusions regarding the claims of Auxiliary Request 3 and the requirements of novelty and inventive step, the parties agreed to continue in writing for the adaptation of the description. Then the chairman "announced the decision that the claims of AR3 met the requirements of the EPC.""
• Second oral proceedings are held for the adaption of the description.
• "after discussion of the patent proprietor's multiple requests for adaptation of the description filed on 4 October 2019, the opposition division twice gave the patent proprietor the opportunity to file a further request for adaptation of the description to overcome the objections raised up to then. Thereupon, both opponents objected "to the Opposition Division as a whole as being biased/suspect of partiality in favor of the Patentee". Oral proceedings were then adjourned from 6 to 9 December.
• "The second oral proceedings were resumed on 9 December 2019 at 13.30 hrs before the opposition division in a three-member composition with the same first and second examiners as before and a new chairman in place of the former chairman. The new chairman announced the decision of the Director in charge that the objection against the former chairman's impartiality was not justified. He also informed the parties that, however, the statements made by the representatives of the opponents in the context of the request gave rise to the concern of inducing possible bias of the former chairman when continuing the proceedings, and that therefore the Director had decided, and the former chairman had voluntarily agreed, that the former chairman be replaced by the new chairman."'
• The written decision is signed by the two members of the OD and the new Chair of the OD.
• The Board, after an extensive analysis, finds this a substantial procedural violation and sets aside the (entire) decision of the OD.
• "It clearly follows from Article 19 EPC that the power to examine and decide on oppositions to a European patent must always be exercised personally by the examiners appointed for that purpose, and it is clear from the provisions of Articles 113(1) and 116 EPC that this personal exercising of said power must be apparent to the parties and the public []. It is established case law that a written reasoned decision pursuant to Rule 111(1), second sentence, and (2) EPC issued after oral proceedings should be the decision written on behalf of, and represent the views of, those members of the opposition division who conducted the oral proceedings and who gave the decision orally at those oral proceedings pursuant to Rule 111(1), first sentence, EPC, and no others []. Therefore, such a written decision must be signed by the members of the opposition division who were involved in reaching the decision pronounced orally, and only by them []. "
• "a change of composition of an opposition division between the oral proceedings and the issuing of a written decision should be avoided and, if that is not possible, parties should be offered new oral proceedings in the event of a change (T 900/02 [r.3])".
• "It is mainly in dispute between the parties in the case at hand whether, in the first oral proceedings on 4 March 2019, interlocutory decisions were announced by the opposition division in the former composition which were binding on the new chairman" (or only conclusions).
•  "the patent proprietor referred to decisions G 12/91, OJ EPO 1994, 285, point 2, second and third sentences, of the Reasons, and T 577/11, point 3.1, second paragraph, of the Reasons. In the cited passage of decision G 12/91, the Enlarged Board of Appeal held that a decision given orally becomes effective and binding by virtue of being pronounced. In the cited passage of decision T 577/11, the board of appeal confirmed this for interlocutory decisions announced in the course of oral proceedings on a specific point and found that such a decision excluded any re-opening of the debate. These findings are not called into question by the board. "
• The Board, for the sake of argument, assumes that an interlocutory decision was given. " the written reasoned decision confirming this orally-announced interlocutory decision must be issued on behalf of the very same members of the opposition division who were present at the first oral proceedings, as the task of giving a written reasoned decision is personal to those members of the opposition division present at the oral proceedings and cannot be delegated to a differently-composed opposition division, even if two of the members remain the same"
• "The board agrees with the view taken in decision T 42/02 (point 9 of the Reasons) that, if an opposition division feels it necessary to orally announce binding interlocutory decisions, the correct procedure under such circumstances would be to issue a written interlocutory decision (not allowing separate appeal pursuant to Article 106(3) EPC) dealing with the issues decided at the first oral proceedings followed by a final decision dealing with the remaining issues, each decision being properly signed by only the three examiners concerned. "
• The Board appears to distinguish the present case from  T 0699/99 where the legal member retired between the first and second oral proceedings and was replaced. An interlocutory decision had been given by the Board in the first oral proceedings.
• The Board also deals with the case that only conclusions were given by the OD during the first oral proceedings (since the minutes are unclear). A substantial procedural violation occurred as well in that case because then the only decision was taken by the new Chair who had not heard the relevant remarks of the parties. "Thus, all findings at the oral proceedings which are relevant to the final decision should be made in the presence and with the involvement of the members giving the final decision, even in cases where no oral interlocutory decision is pronounced. The written reasons must also not be influenced by the views of a new member which were neither formed on the occasion of the respective oral proceedings nor communicated to the parties on this occasion (see decision T 42/02, point 8 of the Reasons). The written decision should therefore be in the name of and signed by those members of the opposition division who conducted the oral proceedings and heard the parties at those oral proceedings on the issues on which a decision was pronounced at the same oral proceedings or [...]at later oral proceedings. Changes in the composition of an opposition division after oral proceedings should therefore be avoided even in cases where no interlocutory decision has been given orally, and if that is not possible parties should in general be offered new oral proceedings in the event of a change (see also T 862/98, point 2.3.2 of the Reasons)."

T 0466/20 - 

https://www.epo.org/law-practice/case-law-appeals/recent/t200466eu1.html

T 0245/18 - Art. 15a RPBA compatible with the EPC

 Key points

•  Oral proceedings took place on 21.05.2021 in this case, without the consent of the appellant.
• The Board did not announce a decision at the end of the oral proceedings and issued the decision in writing on 29.10.2021, i.e. one day after the reasons of G 1/21 were published. Thereby the Board applied Article 15(9)(b) RPBA 2020.
• The Board adds a headnote that it applied new Art. 15(9) RPBA 2020 in view of pending referral G 1/21.
• The Board, in translation: “The board then decided not to issue a decision on the matter before the Enlarged Board of Appeal had decided in proceedings G1 / 21 and set a date for sending the written reasons for the decision on 30 June  2021 - later extended in accordance with Article 15 (9) RPBA 2020 to 30 October 2021.”
• The Board, on new Art. 15a RPBA: “The dispute is therefore limited to the purely legal question of whether a video conference hearing is an oral hearing within the meaning of Article 116 EPC and whether it is possible to grant a fair hearing within the meaning of Article 113 EPC. This has been expressed through the change in the rules of procedure (see Article 15 (a) RPBA 2020). The board does not share the view that this provision is incompatible with higher-ranking law of the European Patent Convention. It was confirmed in this respect by the recent decision of the Enlarged Board of Appeal in case G1 / 21, to whose paragraphs 27, 30, 40 and 43, in particular, reference is made.”
• G 1/21 did not expressly comment on Art. 15a RPBA.
• The Board: “In summary, a final decision could be issued in the present case and it was not necessary to re-enter the oral hearing, since the decision of the Enlarged Board of Appeal in case G1 / 21 basically confirmed the legal view of the board and also because the factors applied by the board in its exercise of discretion within the framework of 15 (a) RPBA correspond to those which the Enlarged Board of Appeal has now also considered relevant in the aforementioned decision (see paragraphs 44 to 51).”

T 0245/18 - 

https://www.epo.org/law-practice/case-law-appeals/recent/t180245du1.html

decision text omitted.

G 1/21 - Vico oral proceedings

 Key points

•  Let's walk through the written decision in case G 1/21 (already extensively reported elsewhere, of course).
• “The Enlarged Board finds it justified to limit the scope of the referral to oral proceedings before the Boards of Appeal and to take the specific context of the referral, the COVID-19 pandemic, into account. This is in line with earlier decisions G 1/19 [] and G 2/19 [] in which the Enlarged Board took the position that a referred question may remain unanswered to the extent that it exceeds the real need for clarification.”
• “The Enlarged Board is of the view that in order to clarify the legal framework for holding oral proceedings by videoconference it is appropriate also to consider the compatibility of this format with Article 113 EPC” (and not only Article 116 EPC).
• The Enlarged Board adds that “the right to be heard is the fundamental principle and the right to oral proceedings is an expression of that principle”, which may be true but does not mean that oral proceedings can be dispensed with if the party is heard extensively in the written proceedings (no matter how much the first instance departments may wish so).
• As to the term ‘oral proceedings’: “There is thus no basis in this word for limiting its scope to in-person hearings in a courtroom before the deciding body.”.
• After further analysis: “The Enlarged Board therefore concludes that oral proceedings in the form of a videoconference are oral proceedings within the meaning of Article 116 EPC.”
• The Enlarged Board notes that if they were not, “This in turn would give rise to questions as to legal status of a videoconference, and for example whether parties can be asked to state their final requests or whether the board can close the debate and announce the decision at the end of it. Such questions would moreover arise irrespective of the consent or non-consent of all of the parties, because if videoconferences are not oral proceedings this also applies when the parties have consented to them. ”
• R.44:“ In the preceding paragraphs the Enlarged Board set out the reasons for its conclusion that oral proceedings by videoconference are oral proceedings within the meaning of Article 116 EPC and, although not fully equivalent to oral proceedings held in person, normally do not infringe a party's right to be heard or the right to fair proceedings.”
• The key point of the whole decision appears to be the above remark that vico oral proceedings are oral proceedings within the meaning of Article 116 EPC yet are not fully equivalent to oral proceedings held in person. 
• In my view, this is a very smart move of the Enlarged Board to find a way out of the strict dichotomy that was perceived in the public debate up to the hearing.
• “hearing in person is the optimum format ...  It is also the format that the legislator had in mind when drafting Article 116 EPC. Therefore, in-person hearings should be the default option. Parties can only be denied this option for good reasons.”
• At the ellipsis, the EBA adds that “a hearing in person is the optimum format or, to use a term well known in the field of European patent law, it is the gold standard” (see G 2/10 of course).
• The Enlarged Board in r. 46 appears to reject the argument that "the choice of format is an administrative matter which, like other organisational aspects of oral proceedings, can be decided by the instance scheduling the oral proceedings".
• The Enlarged Board: “Firstly ... the Enlarged Board holds the view that a videoconference normally provides the basic conditions for an opportunity to be heard and to present a case. If in a particular case a videoconference is not suitable, the oral proceedings will need to be [i.e., must be] held in person. ”
• “Secondly, there must also be circumstances specific to the case that justify the decision not to hold the oral proceedings in person. These circumstances should relate to limitations and impairments affecting the parties' ability to attend oral proceedings in person at the premises of the EPO.  ... This decision should not be influenced by administrative issues such as the availability of conference rooms and interpretation facilities or intended efficiency gains. It is the EPO's responsibility to make available the necessary resources for facilitating the conduct of proceedings provided for in the EPC.”
• Implicitly, since the ellipsis is the omitted sentence “In the case of a pandemic, such circumstances could be ...”, the other sentences of the paragraph extend beyond the covid-19 pandemic.
• “Thirdly, the decision whether good reasons justify a deviation from the preference of a party to hold the oral proceedings in person must be a discretionary decision of the board of appeal summoning them to the oral proceedings.”
• I'm not entirely sure what this paragraph means, except that the Enlarged Board does not wish to receive petitions for review on the point. The decision may be discretionary, but presumably only when the first and second factor of G 1/21 are complied with.
• “During a pandemic delays in finalising appeals could apply to a great number of pending cases and therefore seriously impair the administration of justice. In these circumstances it was justified to overrule the wish of the parties and to hold oral proceedings by videoconference.”
• “Finally, it would appear that while in some cases Contracting States and international courts have introduced the possibility of imposing videoconference hearings on the parties during the COVID-19 pandemic, there has so far been considerable reticence about prolonging this measure beyond the current emergency situation. In a similar way, the Enlarged Board has limited the scope of its answer in the present referral to a period of general emergency.”
• The Enlarged Board expresses no view on Article 15a RPBA.

EPO G 1/21; G 0001/21; 

https://www.epo.org/law-practice/case-law-appeals/recent/g210001ex3.html

decision text omitted.