Saturday, 12 June 2010

R 14/09 – On The Right To Be Heard

[5] The Petitioner argues in essence, that he had not been given a reasonable chance to realise in time, i.e. before the Board of Appeal took the decision under review, the relevance which the Board attributed to Attachment A, so that he was not able to comment on it as it is his right pursuant to A 113(1). This contention is, however, not supported either by the facts or by the law:

[6] True, when the Petitioner received that document more than 14 months before the oral proceedings (OPs), at the end of which the decision under review was taken, the members of the Board of Appeal had been replaced as required by A 24(4). However, this interim composition of the Board did not and could not have any bearing on the decision on the substance of the case.

What matters is rather the fact that the document in question is nothing else than a set of colored drawings with commentaries, all made up by the then appellant (patent proprietor) and submitted for an enhanced comprehensibility of his arguments in support of the patentability of the claims according to the “1st Auxiliary Request” and that the parties, about three months before the OPs, were informed by the Board of Appeal in its second communication, that the reasoning provided in support of inventive step would be relevant also in respect of the appellant’s main request. Under these circumstances the Petitioner, even if he (wrongly) assumed that Attachment A was not formally in the proceedings, he could not reasonably have trusted that this document would not be considered at all by the Board of Appeal.

The Petitioner did not allege and there are no indications whatsoever, that during the OPs he had been hindered by the Board of Appeal to comment on that document or on the Petitioner’s arguments referring to it before or after he had, according to his own account, unsuccessfully objected to the use of that document.

[7] It follows that the Petitioner had actually been given the opportunity to present his comments within the meaning of A 113(1) also on Attachment A insofar as it is to be considered as grounds or evidence on which the decision under review is based.

[8] It is then irrelevant for the purposes of A 113(1), whether and when Attachment A became (legally) part of the file within the meaning of R 147(1), and it is immaterial that, as the Petitioner maintains, he became aware of the purported relevance of that document only when reading the reasons for the decision. That would certainly have been too late for a successful plea, but could not alter the fact that his right to be heard before the Board of Appeal decided against him was not infringed.

It is pointed out in this context, that it is not the purpose of that right to provide – and the A 112a(2) (c) and A 113(1) may not be construed as providing – to any party to the proceedings a further opportunity to argue its case.

[9] The Petitioner relies also on purported violations of A 114 in conjunction with R 116(1) and (2) or, respectively, R 101 and 99(2). However, these provisions are not listed in A 112a(2) or R 104 as grounds on which a petition may be filed.

[10] The “Technical Opinion on the Submissions of the Patent Proprietor concerning the Parameters of EP 0 802 341 B1” was filed during the period provided in A 112a(4), first alternative. However, the right to be heard or “the opportunity to present comments” (A 113(1)) is by definition not related to the content and/or the merits of the comments. Hence, there is no need that the party affected demonstrate that it would have produced convincing evidence (or arguments) if sufficient opportunity to comment had been given to it. It follows that the “Technical opinion” cannot be considered in the review of the impugned decision, irrespective of whether it contained “substantiated and substantive submissions, which would have considerably influenced the decision of the board of appeal”.

You can download this decision here.