EPO: No Violation of the Right to Be Heard in Case of Absence from Oral Proceedings

The right to be heard is a fundamental principle of patent proceedings, the boundaries of which are clarified in this decision. If the Board of Appeal discusses for the first time during oral proceedings the novelty or inventive step of a subject-matter in light of documents already in the proceedings (which were previously only discussed in relation to higher-ranking requests), this does not constitute a surprise to an absent party. The right to be heard under Article 113 EPC is not violated by such procedure. (EPO-BoA 21.10.2025, T 77/23)