An International Guide to
Patent Case Management for Judges

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11.6.8 Trial and hearing Right to oral proceedings

Parties to proceedings before the Boards of Appeal have a right to oral proceedings.103 If one party requests oral proceedings, a hearing must take place. If none of the parties requests oral proceedings (which is rather a rare occurrence), the Board may either summon the parties to oral proceedings on its own motion or decide the case in written proceedings.

Parties are usually summoned at least four months before the hearing is to take place.104 They are summoned to the Boards of Appeal premises in Haar or to the EPO’s headquarters in Munich. Oral proceedings may also be held by videoconference (see Section below).105

As a rule, oral proceedings before the Boards of Appeal are public.106 In exceptional cases, a Board may decide to exclude the admission of the public where such admission could have serious and unjustified disadvantages (e.g., for a party to the proceedings).107 It may also be the case, especially in proceedings before the Legal Board, that the European patent application has not yet been published; in this event, oral proceedings will not be public.108

Parties may request a change of date of the oral proceedings.109 However, parties must show serious reasons for such a request to be granted. Typical reasons that may justify a change of the date are the serious illness of the representatives or their firmly booked holiday or business trip, or if they had already been summoned to oral proceedings in other proceedings before the EPO or a national court.110 It is unlikely that reasons such as excessive work pressure or the appointment of a new professional representative will be accepted.111 Communication issued by the Board of Appeal in preparation for oral proceedings

The Boards always issue a communication in preparation for oral proceedings.112 This communication is based on a thorough analysis of the case and draws attention to matters that seem to be of particular significance for the decision to be taken. The communication should help the parties to concentrate on the essentials of the case in their preparation of oral proceedings and ensures that the oral proceedings are conducted efficiently. The Boards usually also give a preliminary opinion on the decisive points in their communications.113

These communications are normally issued at least four months in advance of the date of the oral proceedings.114 They may be issued together with the summons or later. Conduct of oral proceedings and languages used

Oral proceedings are presided by the chair in the particular appeal. The chair ensures their fair, orderly and efficient conduct.115 If a party duly summoned to oral proceedings does not appear as summoned, the proceedings may continue without that party,116 and this party may then be treated as relying only on its written case.117

Each case before the EPO has a language of proceedings, which must be one of the official EPO languages (i.e., English, German or French). The language of proceedings is determined by the language in which the European patent application was filed.118 At the oral proceedings, however, parties may use any official language of the EPO.119 If a party chooses to deviate from the language of proceedings at the oral proceedings, they must give notice at least one month before the oral proceedings so that the EPO can organize and then pay for interpretation.120 Parties can, of course, also provide for interpretation into the language of the proceedings at their own expense; at oral proceedings, they can also then use any official language of a Contracting State.121 In practice, oral proceedings before the Boards of Appeal with interpretation from and into one language – or even two or more languages – are quite frequent. Oral proceedings by videoconference

The Boards of Appeal may hold oral proceedings by videoconference.122 Different setups are possible – for example:

  • In “distributed oral proceedings,” all members, representatives and accompanying persons attend by videoconference.

  • In “mixed-mode oral proceedings,” some parties, representatives and accompanying persons are physically present in the oral proceedings room with the board members, while others attend by videoconference.123 Exceptionally, one or more of the board members may also attend by videoconference.124