In R 0016/23 (Enlarged Board of Appeal, 21 November 2025), the Enlarged Board set aside a Legal Board of Appeal decision which had dismissed an appeal without holding requested oral proceedings. The decision is a clear statement that efficiency and “timely legal certainty” cannot, in themselves, justify restricting the scope of Article 116(1) EPC when a party has made a valid request.
Background
The petition for review concerned decision J 6/22 (Legal Board of Appeal 3.1.01, 26 July 2023), in which the Legal Board rejected a request for re-establishment of rights in relation to the time limit for filing the statement of grounds of appeal, and consequently rejected the appeal as inadmissible.
In the appeal proceedings, the appellant-applicant had requested oral proceedings as an auxiliary measure in the notice of appeal, and later again requested oral proceedings “in case the EPO would envisage to reject” the re-establishment request. The Legal Board nevertheless decided the case in writing, relying on reasoning which included a “dynamic” interpretation of Article 116 EPC and considerations of procedural economy and timely adjudication.
The petition relied, in particular, on Article 112a(2)(d) EPC in conjunction with Rule 104(a) EPC (failure to hold requested oral proceedings).
Key findings of the decision
First, the Enlarged Board confirmed that where oral proceedings have been validly requested in the event of an adverse decision, the deciding board “should have arranged” oral proceedings before taking that decision (Catchword 1).
Second, the Enlarged Board considered that the failure to arrange oral proceedings indeed constitutes a fundamental procedural defect within the meaning of Article 112a(2)(d) and Rule 104(a) EPC since, as a result, the appellant-applicant did not have the opportunity to present the case orally on the decisive issues of re-establishment of rights and the admissibility of the appeal (Catchword 2). The Enlarged Board also reiterated that the right includes the possibility “merely to present orally what [the party] has already submitted in writing” (Reasons 10.7).
Third, the Enlarged Board rejected the Legal Board’s attempt to justify a restriction of Article 116(1) EPC by reference to timely legal certainty and procedural economy. It was “not persuaded” that the considerations relied on could mean that requested oral proceedings were not mandatory, nor that the right could be “balanced against” such considerations (Reasons 10.14.2).
Analysis and implications
R 0016/23 is procedurally significant because it characterises the failure to hold requested oral proceedings as a fundamental procedural defect within the meaning of Article 112a(2)(d) EPC and Rule 104(a) EPC, where the request related to the decisive issues and the proceedings were terminated adversely without a hearing.
The Enlarged Board consequently set aside the decision under review, re-opened the proceedings before the Legal Board, and ordered reimbursement of the petition fee (Order).
Practically, the decision underlines that parties should formulate oral proceedings requests clearly (including conditional requests tied to adverse outcomes), and that deciding bodies should treat such requests as binding unless a recognised exception applies. The decision also signals that workload or efficiency arguments cannot, without a legal basis, operate as a discretionary “weighing” factor against Article 116(1) EPC when the right is engaged.
