SONN Patentanwälte – IP Attorneys

EPO case law: Infringement of the right to be heard

The text on the basis of which the application is granted or the patent is maintained in a decision or an interlocutory decision must be the one submitted or approved by the applicant or patent proprietor within the meaning of Article 113(2) EPC. Even if the applicant or patent proprietor has expressly delegated the adaptation of the text, e.g. in relation to the description, to an organ of the EPO (in this specific case probably to shorten the duration of the oral proceedings before the opposition division), the division may not issue an interlocutory decision or a decision on the basis of the text adapted by the division without submitting it in turn to the applicant or patent proprietor for approval. The division may also not be released from this obligation at the express request of the applicant or patent proprietor. A violation of this obligation constitutes, as a violation of the principle of right to be heard enshrined in Art 113(2) EPC, a serious procedural violation justifying the reimbursement of the appeal fee pursuant to Rule 103(1) a) EPC (EPO-BoA 12 July 2017, T 1227/14).