4.3. Article 112a(2)(c) EPC – alleged fundamental violation of Article 113 EPC
In R 8/16 the Enlarged Board held that an alleged violation could not be fundamental, in the sense of intolerable, if it did not cause an adverse effect. In the case in hand the Enlarged Board stated that the omission of the reasons for the admission of the main request may not be a practice which it expressly endorsed but given that the petitioner did not explain and the Enlarged Board itself could not see what adverse effect might have been caused by not hearing the petitioner on this issue, and given that the admission of the petitioner's main request was clearly a positive result for the petitioner, it was not seen as a fundamental violation of Art. 113(1) EPC. The Enlarged Board further held that, as a matter of principle, the board was free to examine the (pending) claim requests in any order, and therefore it was also free to conduct the discussion on them in any order, without having to give reasons. It stated that the principle of party disposition expressed in Art. 113(2) EPC did not extend so as to permit a party to dictate how and in which order a deciding body of the EPO may examine the subject-matter before it. The only obligation on the EPO was not to overlook any still pending request in the final decision. The order of examination or discussion is a question of procedural economy, for which mainly the deciding body is responsible. A board has no particular duty to give reasons why it chose to proceed as it did. Giving reasons on withdrawn requests might well have given rise to an objection under Art. 113(2) EPC.
4.3.17 Alleged violation of Article 113(2) EPC
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Art. 113(2) EPC does not give any right to an applicant in the sense that the EPO is in any way bound to consider a request for amendment put forward by the applicant. The effect of this provision is merely to forbid the EPO from considering and deciding upon any text of an application other than that "submitted to it, or agreed, by the applicant or proprietor" (G 7/93, OJ 1994, 775). See also R 10/08, R 11/11).
In R 10/08 the Enlarged Board stated, citing G 12/91 (OJ 1994, 285), that the moment a decision is pronounced is not the last moment at which parties may still make submissions: "This must be done at an earlier point in the proceedings to allow the decision-making department time to deliberate and then to issue its decision based on the parties submissions". Even if the debate could be re-opened in exceptional cases, the parties have to expect that, as long as it is not re-opened, a decision can be given after deliberation.
In R 8/16 the petitioner alleged a fundamental breach of its right to be heard partially on the basis that the decision of the board did not explain what had happened to requests withdrawn and replaced by the petitioner before the final decision of the board. The Enlarged Board held that giving reasons on withdrawn requests might well have given rise to an objection under Art. 113(2) EPC.
- Case law 2019