The Absolute Right to be Heard: Enlarged Board Rejects Dynamic Interpretation in R 16/23
In R 0016/23, the Enlarged Board of Appeal firmly pushed back against a Legal Board's attempt to deny oral proceedings on the grounds of procedural economy. The decision reaffirms that Article 116(1) EPC guarantees an almost absolute right to a hearing.
The boundary between an absolute procedural right and the demands of procedural efficiency has been tested repeatedly since the EPC's inception. In R 0016/23, the Enlarged Board of Appeal firmly halts a recent attempt by the Legal Board of Appeal to dynamically reinterpret this boundary, confirming that the right to oral proceedings cannot be sacrificed on the altar of procedural economy.
The unheld hearing
The case began with a missed deadline for a seventh-year renewal fee. The examining division rejected the applicant's request for re-establishment of rights. The applicant appealed, but the statement of grounds of appeal was not filed in time. The Legal Board of Appeal issued a communication noting the missing grounds. In response, the applicant filed a second request for re-establishment—this time into the deadline for the grounds of appeal—citing a representative's medical condition. Crucially, the applicant explicitly requested oral proceedings if the Board envisaged rejecting this new request. The Legal Board, in decision J 0006/22, rejected the re-establishment request and dismissed the appeal as inadmissible without ever holding the requested oral proceedings.
The Legal Board's efficiency drive
The Legal Board justified its refusal to hold oral proceedings through a "dynamic interpretation" of Article 116(1) EPC. It argued that the requirement for immediate and complete substantiation of a re-establishment request—the "Eventualmaxime" principle—meant the applicant's request was doomed from the outset because it lacked assertions about staff substitution (J 0006/22, reasons 15–17). According to the Legal Board, holding oral proceedings would serve no legitimate purpose and would run counter to the requirement of legal certainty in due time. To support this, the Legal Board invoked Article 6(1) ECHR, noting that the European Court of Human Rights increasingly emphasises procedural efficiency and sometimes dispenses with hearings (J 0006/22, reasons 47).
The Enlarged Board restores the absolute right
The Enlarged Board of Appeal dismantled this dynamic interpretation. It confirmed that the failure to arrange the requested oral proceedings constituted a fundamental procedural defect under Article 112a(2)(d) EPC and Rule 104(a) EPC (reasons 6). The panel noted that while established case law recognises narrow exceptions to Article 116(1) EPC—such as when a party announces non-attendance or files a non-existent legal remedy, as seen in G 0001/97 or G 0002/19—the present situation did not fit any of these categories (reasons 10.10–10.11).
The Enlarged Board was particularly dismissive of the Legal Board's reliance on the ECHR. It pointed out that Article 6(1) ECHR ensures minimum standards for a fair trial. Relying on Article 53 ECHR, the panel stressed that human rights instruments are applied as minimum standards and not seen as a ceiling for protection (reasons 10.14.5). Therefore, Article 6(1) ECHR cannot therefore be invoked in order to justify a restrictive interpretation of Article 116(1) EPC.
The panel concluded that the right to oral proceedings leaves no room for weighing up the petitioner's right to present the case orally against aspects relating to the expeditious conduct of the appeal proceedings or the prospects of success (reasons 10.13). The decision was set aside and the proceedings re-opened.
Practical implications
The Enlarged Board has drawn a hard line: a Board of Appeal cannot unilaterally cancel requested oral proceedings simply because it believes the party's substantive case is hopelessly flawed. For practitioners, this reaffirms the tactical necessity of explicitly requesting oral proceedings under Article 116(1) EPC at every stage, including in requests for re-establishment of rights.
However, while this decision guarantees your right to be heard, it does not save a poorly substantiated request. The "Eventualmaxime" principle still applies to the substance of Article 122 EPC submissions. You will get your day in court, but if you failed to submit all facts and evidence within the two-month window, the oral proceedings may be very brief indeed.
Sources
Further Reading
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