4.3. Withdrawal of request for oral proceedings
4.3.2 Announcing non-attendance
Where oral proceedings are scheduled upon a party's request and that party subsequently expresses its intention not to attend, such statement is generally interpreted as a withdrawal of the request for oral proceedings.
In T 3/90 (OJ 1992, 737) oral proceedings were appointed as a result of a party's request. The party subsequently stated that it would not be represented at the oral proceedings. The board held that such a statement should normally be treated as equivalent to a withdrawal of the request for oral proceedings (see also T 696/02, T 1027/03, T 1482/05, T 871/07, T 1229/12, T 2188/12, T 320/16, T 517/17, T 849/18). By stating that it will not attend oral proceedings and by requesting a decision on the record, a party unequivocally expresses that it is interested in an immediate decision on the file as stood and that it does not wish to present his arguments orally in the requested oral proceedings (T 1482/05). As a consequence, the decision can be handed down in writing without holding oral proceedings (Art. 12(8) RPBA 2020). See T 320/16 and T 502/16.
In T 910/02 the board remitted the case to the department of first instance for further prosecution without oral proceedings, since all the parties who had presented their comments in the appeal proceedings had either withdrawn their request for oral proceedings or had stated that they would not attend oral proceedings. In such a case the board has discretion either to abide by the date for the oral proceedings in order to announce a decision, or to cancel the oral proceedings and issue a decision based on written proceedings. T 663/10 confirmed T 910/02, adding that the board was not obliged to hold oral proceedings in the absence of the party, even if the appellant had explicitly maintained its request for oral proceedings. In T 671/12 the board followed these decisions and held that it could not be the purpose of Art. 116 EPC that a party could oblige a board to hold oral proceedings in its absence. See also T 166/17.
- T 245/19
Catchword:
Oral proceedings may be dispensed with if a party has given notice of non-appearance, even if the request for oral proceedings is expressly maintained (see point 1 of the reasons).
- T 124/22
Abstract
In T 124/22 the parties had been summoned to oral proceedings before the board and a communication had been issued under Art. 15(1) RPBA. By letter of reply, received one day before the scheduled oral proceedings, the respondent had stated that it would not be attending the arranged oral proceedings. No substantive submissions had been made. Subsequently, the oral proceedings had been cancelled.
The board noted that the respondent's representative had provided his videoconferencing details eight days before the scheduled oral proceedings, indicating an intention to participate. However, he had notified the board of his non-participation only one day before the scheduled proceedings. Typically, such notifications were given well in advance (see also T 930/92). According to the board, given that the board's preliminary opinion had been issued ten months ahead of the scheduled hearing, the respondent had had ample time to inform the board of its non-attendance well ahead of the hearing.
In the board's opinion, while it was not uncommon for representatives to receive late instructions, they should seek timely directions from their clients, particularly when arranged oral proceedings approach. In this instance, the representative had failed to communicate promptly with the board's registry. The board pointed out that it (and presumably the opposing party's representative) had already invested some time in preparing for the oral proceedings. It recalled that according to Art. 6 of the epi Code of Conduct, members are required to act courteously in their dealings with the EPO. The same principle applied to behaviour towards other representatives (Art. 5(a) of the epi Code of Conduct).
The board also took the view that the respondent had effectively withdrawn its request for oral proceedings by declaring its intent not to attend them. In turn, the board did not consider the conduct of oral proceedings to be expedient (Art. 116(1) EPC). As a consequence, the decision was handed down in written proceedings (Art. 12(8) RPBA).
- 2023 compilation “Abstracts of decisions”