R 04/14 - Late filed request vs. right to be heard
This petition for review relates to whether or
not non-admissibility of a late filed request can be in conflict with the right
to be heard under Art. 113(1) EPC, either because of a surprising development
of the case, or because of “prima facie” assessment of the allowability of the
request.
In the underlying appeal proceedings, the petitioner’s
(=proprietor’s) only pending request was not allowed due to lack of clarity. The
petitioner was surprised that the discussion of clarity of this particular
feature was resumed in the second oral proceedings. The Board had indicated in
its summons to the second oral proceedings, that clarity of other features were
to be discussed and that it should not be necessary to repeat the argument
presented in the first oral proceedings (where this feature had been discussed
but not decided on). However, respondent III had indicated in its response,
that it still considered it relevant to discuss the clarity of the feature in
question.
At the beginning of the second oral
proceedings, the petitioner only had one request on file. This request is found
unallowable due to lack to clarity. The petitioner filed a new main request
during the oral proceedings, which request was not admitted into the
proceedings.
The questions here addressed by the Enlarged
Board of Appeal are therefore:
1. Can the Petitioner objectively be considered
to have been surprised by the Board’s decision in the second oral proceedings?,
and
2. Can a “prima facie” assessment of the
allowability of a request constitute a violation of the right to be heard?
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