Key points
- The right to be heard under Art.113(1) EPC entails more than an obligation for the Board to listen to parties: the Board's decision should also show that your submissions were considered. However, can it be a violation of the right to be heard by a decision of the Board to hold a submission inadmissible? In such a case, the Board's written decision contains some consideration of the submission.
- R 10/18 held that: "Article 113(1) EPC is infringed if the board does not address submissions that, in its view, are relevant for the decision in a manner adequate to show that the parties were heard on them, i.e. that the board substantively considered those submissions..."
- The Enlarged Board in the present case clarifies that "substantively considered" means "the Board considered the contents of those submissions", " with this consideration comprising matters - pertaining to admittance of facts, evidence and requests, and/or - relating to substantive law, i.e. the merits of a case."
- This headnote must be read in the context of the remaining part of the discussion. In particular, it does not mean that there is never a violation of the right to be heard if a submission is rejected as inadmissible after having the (movant) party on the admissibility.
- The Board " In section V.B.3.4.3 of the Case Law it is said: The following issues can not be considered in review proceedings: ... - whether to admit a new request (R 10/11, R 11/11, R 13/11, R 4/13) or a new document (R 10/09, R 17/11) under Art. 12 RPBA 2007; or under Art. 13(1) RPBA 2007 (R 1/13, R 4/14, R 6/17) ..."
- "In addition, in R 17/10 (in point 2.4 in fine), it was held: The admission of late-filed documents and/or other evidence is a matter for the board's discretion and, therefore, as such not subject to review under Article 112a EPC."
- However, CLBA V.B.3.4.3 also identifies a second line in the case law, as the Board notes: " The exercise of discretion is only subject to review if arbitrary or manifestly illegal (R 10/11 [point 5.2]), thereby involving a fundamental violation of the right to be heard (R 9/11 [point 3.2.3]; see also R 17/11"
- " Under the essence of this case law, merely hearing a party on admittance does not suffice: the decision to not admit must be neither arbitrary nor manifestly illegal."
- Notably, this means that the exercise of discretion by the Board on the admissibility of submissions is subject to review, though the standard of review is a high one, cf. G 7/93 r.2.6 for review by the Board of Appeal of a first-instance decision to hold a submission inadmissible.
- In my view, the second line in the case law is clearly the right one. Not setting aside a decision of a Board of Appeal that holds a submission inadmissible on arbitrary or manifestly illegal grounds defeats the purpose of Art. 112a(2)(c) EPC.
- In the present case, the Enlarged Board acknowledges these two lines of case law but does not choose between them. The Enlarged Board applies both lines of case law, i.e. effectively reviews under the "neither arbitrary nor manifestly illegal" standard.
- "Under the essence of this case law, merely hearing a party on admittance does not suffice: the decision to not admit must be neither arbitrary nor manifestly illegal. These criteria are met in the case in hand: first, the applicable legal provision of Article 12(4) 2007 complies with both the principle of ex officio examination (Article 114(1)) and the right to be heard (Article 113(1) (see point 3.2.2(a) below), and, second, so does its application in the case in hand".
- I wonder if a referral under Art. 112 is possible to revolve the conflicting case law? It would requite an extensive or dynamic interpretation of Art.112.
EPO
The link to the decision is provided after the jump, as well as (an extract of) the decision text.
source http://justpatentlaw.blogspot.com/2023/11/r-000620-i-review-of-decision-to-hold.html
