9.5. Substantial procedural violation

In T 74/17 the board found that the contested procedural steps taken by the opposition division did not amount to substantial procedural violations and therefore that the appeal fee did not have to be reimbursed under R. 103(1)(a) EPC. The board explained that an alleged procedural violation could be taken into account on appeal only if it had had an impact on the appealable parts of a decision, i.e. if it had adversely affected the party. Procedural violations that related only to non-appealable aspects of a decision were not relevant for the decision on the appeal, and for this reason the board did not need to establish whether or not they were substantial. Conversely, this showed that there was no causal link between such procedural violations and the outcome of the contested decision.

In T 1243/17 the board was not convinced that it could be concluded from the case law of the European Court of Human Rights (ECtHR) that the duration of examination proceedings before the EPO had to be systematically taken into account when assessing whether the reasonable time requirement under Art. 6(1) ECHR, first sentence, had been met (see, in this respect, the analysis in decision T 1824/15 of the ECtHR's judgment of 2 May 2013 in Kristiansen and Tyvik AS v. Norway, relating to the progress of proceedings before the Norwegian Industrial Property Office). The board observed that, while the ECtHR had established a violation of the right of access to a court under Art. 6(1) ECHR, it had not ruled on whether there had been any violation of the right to be heard within a reasonable time. Moreover, and contrary to the facts of the case before the ECtHR – in which a "dispute" had already been brought before the Norwegian Office's (non-judicial) boards of appeal as part of the administrative proceedings – the examination proceedings at issue in this case had been purely non-adversarial, ex parte proceedings, and therefore preceded any "dispute" to which Art. 6(1) ECHR could be applied. The board nevertheless considered that the principles developed by the ECtHR on the duration of proceedings provided a useful framework for assessing the length of the proceedings in the case in hand. It observed that the contested decision in this case had been issued just over 17 years after the filing date of the application, and that the examination proceedings, at least between the search report and the first communication, had "stagnated without explanation" for more than eight years, which was normally unacceptable (see T 315/03, T 1824/15, and T 2707/16). However, the appellant had not complained about this stagnation, even though, according to the case law of the ECtHR, it was expected to do what it could to shorten the proceedings. It had also failed in its duty – which the board considered incumbent on all applicants – to co-operate with the examining division. Observing lastly that the appellant had not filed any specific request in connection with the alleged violation of Art. 6(1) ECHR, in particular none for reimbursement of the appeal fee (R. 103 EPC), the board therefore decided not to order reimbursement.

ABl. EPA 2020, Zusatzpublikation 4
OJ EPO 2020, Supplementary publication 4
JO OEB 2020, Publication supplémentaire 4