The Limits of the Right to be Heard: R 0007/25 on Late Interventions
The Enlarged Board of Appeal clarifies when a late intervention triggers a fundamental procedural defect under Article 113(1) EPC. A truncated response period only violates the right to be heard if new grounds lead to revocation.
The procedural balance between accommodating a late intervention under Article 105 EPC and maintaining the schedule of accelerated appeal proceedings has frequently tested the limits of the right to be heard. In R 0007/25, the Enlarged Board of Appeal addresses this tension directly, clarifying when a severely truncated response period to a notice of intervention actually triggers a fundamental procedural defect under Article 113(1) EPC.
Why did the proprietor allege a fundamental procedural defect?
In the underlying appeal (T 1841/23), the Technical Board of Appeal had issued a preliminary opinion indicating that the main request likely contained added subject-matter under Article 123(2) EPC. Specifically, the Board found no direct and unambiguous disclosure that a multimedia client must initiate a composition session by sending a request. Shortly before the scheduled oral proceedings, an intervener filed a notice of intervention based on parallel infringement proceedings. The Board deemed the intervention admissible and set a deadline of just eight days for the proprietor to file observations, refusing requests to postpone the oral proceedings. After the patent was revoked for added matter, the proprietor filed a petition for review, arguing that the two-week period between the intervention and the oral proceedings was insufficient to prepare a defence, thereby violating the right to be heard.
How does the Enlarged Board of Appeal define a causal violation following an intervention?
The Enlarged Board of Appeal rejected the petition as clearly unallowable, establishing a strict three-part test for when an intervention triggers a violation of the right to be heard. The Enlarged Board of Appeal held that a violation of the right to be heard following an intervention may arise where (i) the intervention introduces a new ground or new evidence, (ii) that ground or evidence alone leads to the revocation of the patent, and (iii) the patent proprietor could not take a position on it (reasons 2.4). In the present case, the revocation was based entirely on the added-matter objection that had been in the proceedings from the outset and was detailed in the Board's preliminary opinion. The intervener had merely agreed with the preliminary opinion and provided additional arguments on the same ground. Because the decision did not rely on any new ground or evidence introduced by the intervener, the truncated response time lacked a causal link to the final decision.
Does Article 113(1) EPC guarantee time to address every submission?
The petitioner argued that Article 113(1) EPC confers a right to a proper opportunity to reply to the case presented by an opposing party, asserting that an intervention constitutes a new opposition requiring a standard response period. The Enlarged Board of Appeal clarified the boundaries of this right. The Enlarged Board of Appeal held that the provision guarantees the right to be heard on the grounds and evidence on which the decision is based, but it does not convey an abstract right to respond to every submission filed in the proceedings, regardless of its relevance and impact on the outcome (reasons 3.4). Since the Board had explicitly guided the parties that its decision would likely rest on its preliminary opinion rather than the intervention, the proprietor had received ample opportunity to comment on the decisive added-matter issue.
Why did the preliminary opinion not constitute predetermination?
Anticipating the causality hurdle, the proprietor raised a secondary objection: if the Board considered the intervention irrelevant before the oral proceedings, it must have predetermined the outcome, thereby violating the right to be heard. The Enlarged Board of Appeal dismissed this argument, noting that forming a preliminary opinion on the merits, or on the likely relevance of a new submission, does not bind the deciding body (reasons 4.2). The right to be heard requires that a Board of Appeal remain open to the parties' arguments, not that those arguments succeed. The open-ended language used by the Board in its communications demonstrated that the Board had not prejudged the case.
What must practitioners change when facing a late intervention after R 0007/25?
When an intervention is filed shortly before oral proceedings, proprietors cannot rely on the intervention itself to secure a postponement or a fresh four-month response period. Practitioners must immediately analyse whether the intervener has introduced genuinely new grounds or evidence that could independently lead to the revocation of the patent. If the intervention merely reinforces existing objections, as in this case, the Board of Appeal is entitled to maintain the schedule and focus the debate on the established issues. To preserve the admissibility of a petition for review by raising an objection under Rule 106 EPC, a proprietor must identify the specific new submission they were prevented from making and explicitly explain how that submission could have altered the outcome, rather than relying on a general complaint about insufficient preparation time.
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Further Reading
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