2.7.1 Telephone conversations

In T 300/89 (OJ 1991, 480) the board held, in relation to the appellant's complaint as to the failure of the examiner to telephone as requested, that the practice in relation to such informal communications was clearly set out in the Guidelines. Such informal communications and the practice relating to them should be clearly distinguished from the formal examination procedure governed by Art. 96(2) EPC 1973 and R. 51 EPC 1973. The examiner's discretion as to whether to make such an informal communication had to be exercised in accordance with the Guidelines, having regard to the particular circumstances of each individual case. An exercise of such discretion adversely to an applicant, such as in the case in question, could not by its nature be a procedural violation, however, because the procedure for such conversations was informal in the sense that it was not governed by the EPC 1973, but was additional to the procedure provided by the EPC 1973. In any event, in the board's view, in the case in question no criticism could properly be made of the examiner in relation to his failing to telephone the appellant.

In T 160/92 (OJ 1995, 35) the appellant claimed that in two telephone conversations with the primary examiner he was misled into believing that a refusal was not imminent, as a further communication would be issued as the next step of the procedure. The board observed that one should be warned against expecting too much from telephone calls in critical situations, as misunderstandings could happen more easily than in writing. It was with good reason that the procedure before the EPO was in principle, with the exception of oral proceedings under Art. 116 EPC 1973, a written procedure. Moreover, in the examination (as well as in the opposition) procedure the primary examiner was only one of a division of three examiners, it being well-known that his individual statements could not be binding for the division. Furthermore, telephone conversations were not provided for in the EPC and did not, as such, form part of the formal procedure before the EPO. The board held that the answer to the controversial question whether the applicant was misled about the possibility of imminent refusal of the application must be sought by focusing on the procedurally relevant content of the file.

In T 1905/07 the board pointed out that presenting new grounds in a telephone conversation should not be equated with presenting the same grounds in formal oral proceedings or in a formal written communication. First, mere verbal communication by telephone was more prone to misunderstandings. Secondly, a party also had a right to be heard by the organ which took the decision, i.e. the examining division in the case in hand. A telephone conversation with only one of the examiners of that division did not safeguard this right in the same way as oral proceedings. Whether or not a party's fundamental right to be heard had been infringed depended on the particular circumstances of the case.

In T 702/17 the board explained that conducting oral proceedings with a party over the telephone was not provided for in the EPC. Accordingly, the examining division had acted correctly in refusing to allow the inventor to take part in the oral proceedings over the phone. Furthermore, the inventor had still been allowed to speak over the telephone, with the representative relaying the inventor's words to the examining division – a course of action the representative had agreed to, according to the minutes. The board found that there was therefore no substantial procedural violation which would justify a refund of the appeal fee.