4.3. ‍‍Article 112a(2)(c) EPC – alleged fundamental violation of Article 113 EPC

In R 10/18 the Enlarged Board held that the petition was clearly unallowable. The petitioner (patent proprietor) had asserted that its right to be heard had been violated, arguing that the board had failed to consider the petitioner's argument that filing the opposition using a straw man amounted to a circumvention of the law by abuse of process and that the opposition therefore should have been deemed inadmissible. The Enlarged Board acknowledged that previous cases (e.g. R 2/14) held that Art. 113(1) EPC required that a party had to be able to understand, on an objective basis, the reasons for a board's decision. However, the Enlarged Board explained that the current law (see R 8/15, catchwords 1 and 2) provides that one aspect of the right to be heard as covered by Art. 113(1) EPC requires a board to consider a party's submissions, i.e. assess the facts, evidence and arguments submitted as to their relevance and correctness. Art. 113(1) EPC is infringed if the board does not address submissions that, in its view, are relevant for the decision in a manner adequate to show that the parties were heard on them, i.e. that the board substantively considered those submissions. The Enlarged Board added that a board is presumed to have taken into account a party's submissions that it did not address in the reasons for its decision, meaning that it, first, took note of them and, second, considered them, i.e. assessed whether they were relevant and, if so, whether they were correct. An exception may apply if there are indications to the contrary, e.g. if a board does not address in the reasons for its decision submissions by a party that, on an objective basis, are decisive for the outcome of the case, or dismisses such submissions without first assessing them as to their correctness. In the underlying appeal, the board had stated that it was satisfied that the two interveners had not been involved when opponent 1 filed the opposition. The Enlarged Board agreed with the petitioner that the board, although considering the petitioner's argument alleging an abuse of process, did not expressly deal with it or enable the petitioner to understand the reasons for this decision on admissibility of the opposition. However, the Enlarged Board found that not answering the main point the petitioner had made in relation to the admissibility of the opposition, did not amount to a violation of the right to be heard because it was possible to understand, on an objective basis, from section 1 of the decision under review, in which the board set out and discussed the facts and arguments submitted by the petitioner on the issue of inadmissibility of the opposition (and the interventions) for abuse of process, that the board had substantively considered those submissions. The exception to the principle embodied in catchword 1 of decision R 8/15 therefore did not apply.

ABl. EPA 2020, Zusatzpublikation 4
OJ EPO 2020, Supplementary publication 4
JO OEB 2020, Publication supplémentaire 4