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The EPC and the right to be heard

14th May 2014

The right to be heard is an aspect of justice one would expect to be enshrined in legal systems around the world. It is indeed enshrined in the European Patent Convention that the European Patent Office may only base decisions on grounds or evidence on which the parties concerned have had an opportunity to present their comments (Article 113 EPC).

A relatively recent decision of the European Patent Office Board of Appeal cited as Decision R1/13 of 17 June 2013 appears to severely restrict that opportunity. The facts are roughly as follows:

During an Appeal of Oral Proceedings, the European Patent Office raised an objection for the first time that could have been raised long before. The Patentee then submitted requests in response to this new objection and the European Patent Office Board decided not to admit the request into proceedings due to a prima facie lack of clarity (clarity being the particular objection raised). In short, the EPO Board exercised their procedural right not to admit a request (for subsequent discussion) in spite of the fact that the request was only required because of the late objection raised by the EPO.

One should be careful with criticism (I was not at the Hearing) but it does strike me that the simplest way that the EPO could behave to ensure that they are fair to all parties is to truly and properly give the parties the right to be heard. Closing down procedures for apparent procedural efficiency where a new objection was raised by the EPO themselves comes across as a particularly harsh approach. After all, if a Patentee attempted to raise a late objection they would not be entitled to do so and neither should the EPO be allowed to raise a late objection unless they automatically give the Patentee the right to fully respond.

The right to be heard is a matter of substance not form. It should never be the case that a party to proceedings is not given the opportunity to be properly heard.

This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking before any action in reliance on it.

Ian Loveless
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