Summary of Proceedings
I. In the reasons for its Decision in appeal case T 574/89 of 11 July 1991 Technical Board of Appeal 3.3.1 held that by choosing to stay away from oral proceedings the parties "had forfeited their right to present comments", and hence that "any arguments or evidence submitted by the parties present at oral proceedings" could "be used as a basis for the decision without it being relevant whether such evidence or arguments were already known to the absent parties from the written submissions or whether they could expect such evidence or arguments to be presented".
II. In the reasons for its Decision in appeal case T 484/90 (OJ EPO 1993, 448) Technical Board of Appeal 3.2.1 held that "a decision against a party duly summoned to but failing to appear at oral proceedings which is based on new evidence, such as a new document, on which that party has not had the opportunity to comment, may not be pronounced at the close of those proceedings without infringing that party's right to be heard, unless the absent party indicates that it is forfeiting this right".
III. In view of these contradictory decisions, the President of the European Patent Office, in accordance with Article 112(1)(b) EPC, wrote to the Enlarged Board of Appeal on 3 September 1992 requesting its opinion on the following point of law:
"If one party chooses not to attend oral proceedings, can the decision against that party be based on new facts, evidence and/or arguments put forward during those oral proceedings?"
IV. The President described the right to present comments enshrined in Article 113(1) EPC as a fundamental principle recognised in all the Contracting States. However, respect for this principle did not necessarily mean that all the grounds on which the decisions issued in proceedings before the European Patent Office were based had to have been stated in written proceedings.
Nor was there any reason to infer from the provisions of the EPC that proceedings before departments of the EPO were essentially written. On the contrary, oral proceedings enjoyed the same status as written proceedings and were intended to allow the parties concerned to comment on all aspects of a case.
Hence, according to established Board of Appeal jurisprudence and practice, facts, evidence and arguments submitted for the first time during oral proceedings could be used as a basis for a decision issued at the end of those proceedings provided that the other parties had had an opportunity to comment on such matters.
V. In the view of the President of the EPO, a party duly summoned but choosing not to appear at oral proceedings was to be regarded as forfeiting his right to comment on the facts and evidence put forward in his absence during those oral proceedings. The right to comment enshrined in Article 113(1) EPC had been sufficiently safeguarded. This situation was no different from one where a party chose not to avail himself of the opportunity he had to comment in writing on the arguments put forward by other parties.
A party who chooses not to attend oral proceedings is not unduly prejudiced if the decision issued at the end of those proceedings by the competent EPO department was based on new facts, evidence or arguments on which the absent party would have had the opportunity to comment if he had attended. Indeed, to allow a party who chooses not to attend oral proceedings to continue the proceedings either in writing or by convening new oral proceedings merely because that party had been absent would not be in the interests either of procedural economy or of the parties present.
Reasons for the Opinion
1. From its context it is clear that the referred question relates to inter partes proceedings. This opinion therefore has no bearing on ex parte proceedings. Moreover, the problem underlying the referred question arises on adjournment of the oral proceedings whether or not the decision is actually announced at the end of the oral proceedings.
2. As the President pointed out in his reasons for referring this point of law, Article 113(1) EPC merely reflects the fundamental right to comment generally recognised in the Contracting States by stating that a decision "may only be based on grounds or evidence on which the parties concerned have had an opportunity to present their comments". As J 20/85 (OJ EPO 1987, 102, point 4(a) of the Reasons) points out, "This provision of the European Patent Convention is of fundamental importance for ensuring a fair procedure between the European Patent Office and parties conducting proceedings before it".
3. The referred question of law concerns the application of the principle that parties have the right to comment on facts and evidence put forward for the first time during oral proceedings where one of the duly summoned parties was absent. It also mentions new arguments, but as these are of a different nature they will be dealt with separately (cf. point 10).
4. As Rule 71(2) EPC states, "If a party who has been duly summoned to oral proceedings before the European Patent Office does not appear as summoned, the proceedings may continue without him". In the interests of the proper administration of justice, therefore, no party should be able to delay the issue of a decision by failing to appear at the oral proceedings.
5. Moreover, in accordance with procedural principles, parties must state their position in sufficiently good time to allow opposing parties enough time to present their case in reply. If one party discovers new facts or evidence at a late stage, that party is obliged to communicate such matter to the other parties without delay.
6. Therefore, any judicial procedure, even if it is primarily oral, includes a written phase which is essential in order to ensure that the parties involved are duly notified of the facts and evidence which are relied upon by the other parties in support of their case.
7. For a party to wait until oral proceedings before presenting new facts or evidence that could have been submitted earlier thus constitutes an abuse of procedure which the competent department at the EPO may sanction by disregarding such matter in accordance with Article 114(2) EPC.
8. Nevertheless, in a case where an Opposition Division or a Board of Appeal feels bound by Article 114(1) EPC to examine new facts or evidence, it must, in accordance with Article 113(1) EPC, give the other parties the opportunity to comment before issuing a reasoned decision based on such facts or evidence. Needless to say, this may lengthen the procedure, even if all the parties are present at oral proceedings, because they may not be able to comment immediately. However, the party who submitted the new facts or evidence would have little cause for complaint and, given that any delay would be the result of his own actions, such party should, in principle, be made responsible for any additional costs which such actions have caused.
9. Moreover, evidence which is submitted for the first time during oral proceedings, but which has been previously notified, and which merely supports the previous assertions of the party who submits it, may be used to support the reasons for the decision insofar as the relevant facts were already known to the other parties.
10. As regards new arguments, the requirements of Article 113(1) EPC have been satisfied even if a party who has chosen not to appear consequently did not have the opportunity to comment on them during oral proceedings, insofar as such new arguments do not change the grounds on which the decision is based. In principle, new arguments do not constitute new grounds or evidence, but are reasons based on the facts and evidence which have already been put forward.
Conclusion
For the above reasons the opinion of the Enlarged Board of Appeal is that the question referred by the President of the EPO in the letter dated 3 September 1992 should be answered as follows:
1. A decision against a party who has been duly summoned but who fails to appear at oral proceedings may not be based on facts put forward for the first time during those oral proceedings.
2. Similarly, new evidence may not be considered unless it has been previously notified and it merely supports the assertions of the party who submits it, whereas new arguments may in principle be used to support the reasons for the decision.
