After having received a negative preliminary opinion from the board, the appellant patentee announced that it would have not attended oral proceedings and requested that the proceedings take place in its absence.
According to established case law, if oral proceedings are appointed as a result of a party’s request for such proceedings on an auxiliary basis, and if that party subsequently states that it will not be represented at the oral proceedings, such a statement should normally be treated as equivalent to a withdrawal of the request for oral proceedings.
The appellant patentee’s request for oral proceedings in the present appeal was unconditional. This difference, however, does not matter because the essence of established case law is that there is no point in holding oral proceedings if a party aware of the board’s negative opinion informs the board that it will not attend oral proceedings and will not present additional arguments – such a party has no legitimate interest in pursuing its request for oral proceedings. Rather, under these circumstances and irrespective of whether or not the party explicitly maintains its request for oral proceedings, it is at the board’s discretion to decide whether the scheduled oral proceedings are to be maintained or to be cancelled, since it cannot be the purpose of Article 116 EPC (establishing that oral proceedings shall take place under certain circumstances, including at the request of a party) that a party can oblige a board to hold oral proceedings in its absence.
The board therefore concluded that, taking into consideration the submissions of the parties in the written proceedings, the board’s preliminary opinion and the subsequent appellant patentee’s letter, it is in a position to take a final decision without holding oral proceedings. – Full decision