5.2.6 Oral submissions to be requested sufficiently in advance

Any request should be made sufficiently in advance of the oral proceedings to enable all opposing parties to prepare themselves properly for the proposed submissions.

In T 334/94 the board emphasised that a party wanting such submissions to be made had to ask permission sufficiently in advance of the oral proceedings to give the other parties time to prepare. The board noted that the Enlarged Board had not defined what "sufficiently in advance" meant, or laid down a deadline for making such requests. In its view, the deadline of one month before the proceedings for filing submissions or new sets of claims was a minimum. On that basis, nominating an accompanying expert one week before the proceedings was not acceptable.

In T 899/97 the appellant (opponent) requested that a technical expert be allowed to speak during the oral proceedings in order to explain the physical phenomena that occurred when a prior art separator was used. Pointing out that the relevant letter from the appellant had reached him only two weeks before the oral proceedings, and referring to G 4/95 and T 334/94, the respondent requested that this technical expert be refused permission to speak. The board considered the particular circumstances of the case, i. a. that this technical expert was one of the authors of the test report (R2) filed by the appellant with the statement of grounds, that the board had raised some questions on this specific technical issue in the annex to the summons to oral proceedings, and that these technical issues had already been discussed before the department of first instance. With these circumstances in mind, the board held that the appellant's request that the technical expert be heard had been submitted sufficiently in advance of the oral proceedings.

In T 634/16 there was still just over a month to go before the date of the oral proceedings when the appellant (patent proprietor) requested permission for an accompanying person to make oral submissions, but the festive holiday period fell in the time in between. The respondents (opponents) argued chiefly that they had been unable in the short time available between receiving the letter with the appellant's request and the start of that general holiday period and then until the date of the oral proceedings to find technical experts who would have been able to help their representatives to refute the arguments made in any such oral submissions. The board considered it plausible that this had made it at least very difficult to prepare any defence against the oral submissions, it being unknown what technical matters they would cover as those announced by the appellant in its letter had been vague. Since there were no exceptional circumstances that might have served as justification, the board therefore refused to allow the oral submissions.

The board in T 89/04 refused a request that an accompanying person be permitted to make oral submissions as it had been filed only three days before the opposition proceedings.