2. The right to be heard under Article 113(1) EPC

In T 1414/18 the board held that a statement such as "the next procedural step will be summons to oral proceedings during which the application will be refused" made prior to a final decision to refuse a patent application may infringe a party's right to be heard and thus may lead to a substantial procedural violation. The phrase "will be refused" – on an objective basis – implied that, regardless of any facts or arguments the applicant could potentially have brought forward thenceforth, the application was finally to be refused under Art. 97(2) EPC. Such a conduct of the proceedings was contrary to the very aim and purpose of the right to be heard under Art. 113(1) EPC, according to which decisions of the EPO organs like a decision of an examining division to eventually refuse a patent application may only be based on grounds or evidence on which a party had indeed an opportunity to present their comments. The board found there to be a causal link between the above substantial procedural violation and the necessity of filing an appeal against the examining division's decision and found the reimbursement of the appeal fee to be equitable. It ordered remittal to the examining division for further prosecution (Art. 111(1) EPC).

In T 655/13 the board held that the examining division would need to provide the translation of at least the referenced larger section of document D1 on which it based its reasoning, or identify the relevant passage as clearly as possible, to enable the appellants (and if necessary the board) to understand and verify whether the examining division had taken their arguments into account, thereby respecting their right to be heard.

In T 448/16 the appellant (patent proprietor) raised an objection under R. 106 EPC, the core of which was that the board should have indicated to the appellant what features were missing in the various versions of the auxiliary requests. This would have allowed the appellant either to provide suitable arguments in favour of existing requests or formulate a new request that could have overcome the problem of added subject-matter. The board applied the established jurisprudence of the Enlarged Board of Appeal. It found that had it, after having discussed the issue exhaustively with the parties, then indicated to the appellant precisely which specific features were missing from claim 1 in any of its versions so that the appellant-proprietor could compose suitable counter-arguments or file a suitably adapted further request, this would have favoured the appellant's case over that of the respondents (opponents). The board stated that such a course of action would have compromised its duty to remain neutral, and thus the board saw itself as prohibited from so doing. The board thus dismissed the appellant's objection and considered that its right to be heard had not been violated.