J 0007/82 - Written decision must mention main arguments and facts - #81

Citation rank: 81
No. of citations: 62

J 7/82 is most often cited as holding that, in order for a decision to comply with the requirements of Art. 113(1) (right to be heard), the written decison must at least mention or summarise the main lines of arguments which were presented by the effected party in support of its position (pont 6 of the reasons; the Headnote deals with a different issue, see below).

Expressed differently, the right to be heard guarantees the right to have the relevant grounds fully taken into account in the written decision. In the case of a decision rejecting the opposition, the relevant grounds are: the ground(s) for opposition as well as facts, evidence (inter alia prior art documents), and arguments presented in support of these grounds for opposition. A failure to do so is considered a substantial violation of the right to be heard (T 1059/98, citing J 7/82).

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Headnote:

I. The provisions of Rule 78(2) EPC, last sentence, which deem postal notifications to have been made when despatch has taken place, do not apply in a case in which the receipt of a notification under Rule 69(1) EPC is relevant to the question when the cause of non-compliance with a time limit has been removed, for the purposes of Article 122 EPC. In such a case the significant date is the date of actual receipt by the applicant.
II. If a decision does not take into account arguments submitted by a party and is based on a ground on which the party had no opportunity to present his comments, this is a substantial procedural violation.
III. Reimbursement of the appeal fee may be ordered pursuant to Rule 67 EPC, even though reimbursement has not been applied for, if the conditions laid down in that rule are fulfilled.

The text of the decision can be found here.