5.1. Enlarged Board's landmark decision G 4/95

In G 2/94 (OJ 1996, 401) and G 4/95 (OJ 1996, 412), the Enlarged Board answered questions referred to it in J 11/94 (OJ 1995, 596) and T 803/93 date: 1995-07-19 (OJ 1996, 204) as to whether, and if so in what circumstances, a person not qualified to act as a representative before the EPO (an "accompanying person") might make oral submissions on either legal or technical issues on a party's behalf during oral proceedings under Art. 116 EPC 1973 in ex parte or inter partes proceedings.

According to the decision G 4/95 oral submissions by an accompanying person in opposition or opposition appeal proceedings cannot be made as a matter of right, but only with the permission and at the discretion of the board. According to the decision G 2/94 a board of appeal has a discretion to allow an accompanying person to make submissions during oral proceedings in ex parte proceedings, in addition to the complete presentation of a party's case by the professional representative.

In G 4/95 the Enlarged Board noted that the appointment of a professional representative by a party involved the authorisation and identification of the professionally qualified person who was responsible for the presentation to the EPO of all submissions made by the party. Such presentation of a party's case was the essential core of the function of a professional representative under Art. 133 EPC 1973. During oral proceedings, a professional representative was expected to present the entire case of the party that he or she represented.

As to the presentation of facts or evidence by an accompanying person, the Enlarged Board held that such oral submissions during oral proceedings – in addition to the complete presentation of the party's case by the professional representative – are not excluded under the EPC. They may be allowed under the overall discretionary control which the EPC gives to the EPO with respect to the filing of facts and evidence.

As to the question whether an accompanying person may make oral submissions during oral proceedings by way of argument, the Enlarged Board pointed out that Art. 133 EPC 1973 made no distinction between written and oral proceedings in connection with the requirements for representation. Thus a professional representative was responsible for all written and oral submissions made on behalf of the party who had appointed him.

The Enlarged Board further held that such oral submissions could not be made as a matter of right, but only with the permission of and at the discretion of the EPO. The following criteria should be considered by the EPO when exercising its discretion:

(i) The professional representative should request permission for such oral submissions to be made. The request should state the name and qualifications of the accompanying person and should specify the subject-matter of the proposed oral submissions.

(ii) The request should be made sufficiently in advance of the oral proceedings so that all opposing parties are able properly to prepare themselves in relation to the proposed oral submissions.

(iii) A request made shortly before or at the oral proceedings should, in the absence of exceptional circumstances, be refused unless each opposing party has agreed to the making of the oral submissions requested.

(iv) The EPO should be satisfied that oral submissions by an accompanying person were made under the continuing responsibility and control of the professional representative.