2.7.1 Facts and evidence put forward for the first time during oral proceedings

In G 4/92 (OJ 1994, 149), which explicitly relates to inter partes proceedings only, the Enlarged Board held that, in view of the right to present comments, a decision against a party who had been duly summoned but who failed to appear at oral proceedings could not be based on facts put forward for the first time during those oral proceedings. Evidence put forward for the first time during oral proceedings could not be considered unless it had been previously notified and it merely supported the assertions of the party which had submitted it. New arguments, on the other hand, did not constitute new grounds or evidence, but were reasons based on the facts and evidence already put forward. As regards new arguments, the requirements of Art. 113(1) EPC could thus be satisfied even if a party who chose not to appear did not have the opportunity to comment on them during oral proceedings.

According to Art. 15(3) RPBA 2020 (formerly: Art. 11(3) RPBA 2003, then Art. 15(3) RPBA 2007), "[t]he Board shall not be obliged to delay any step in the proceedings, including its decision, by reason only of the absence at the oral proceedings of a party duly summoned who may then be treated as relying only on its written case." The preparatory documents to this Article (initially in the RPBA 2003) state that this provision does not contradict the principle of the right to be heard pursuant to Art. 113(1) EPC since that Article only affords the opportunity to be heard and, by absenting itself from the oral proceedings, a party gives up that opportunity (CA/133/02 dated 12 November 2002). This RPBA provision superseded the findings of G 4/92 with regard to the non-attendance at the oral proceedings before the boards (T 706/00). To the extent that G 4/92 supports the general admissibility of new arguments in appeal proceedings, it was also modified by the amendments to the RPBA introduced with effect from 1 May 2003 (the RPBA 2020 are applicable since 1 January 2020), which made the introduction of new arguments subject to the discretion of the boards (T 1621/09, summarising previous case law). G 4/92 still applies for the departments of first instance (see Guidelines E‑III, 8.3.3.2 – March 2022 version). With regard to proceedings before the examining divisions, see also the notice published in OJ 2020, A124.

In T 2138/14 (ex parte) the board stated that it was established case law that a non-attending party's right to be heard under Art. 113(1) EPC must not be ignored (see in this chapter III.B.2.7). This view was confirmed by analogy to Opinion G 4/92. Although G 4/92 explicitly only concerned inter partes proceedings, the same principle has been applied in ex parte proceedings (see in this chapter III.B.2.6.1).