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.

T 0278/00 - Decisions of the EPO must be properly reasoned - #95

Rank: 95
Number of citations: 55

T 278/00 is concerned with the requirement of the EPC that decisions of the EPO which are open to appeal should be reasoned and be accompanied by a written communication of the possibility of appeal (R 68(2) EPC1973, Rule 111(2) EPC).

In the underlying examination case, the application was refused for lack of inventive step and lack of unity, but the reasoning for the decision was such that "the Board had serious difficulties in attributing any meaning to the reasoning of the first instance on which the latter based the decision to refuse the application."

The Board recalled that the purpose of the requirement to provide a reasoned decision is to enable the Appellant and, in case of an appeal, also the Board of Appeal to examine whether the decison could be considered to be justified or not. The appellant or the Board should not be forced to speculate as to what might be the intended meaning of the decision.

In a situation as the one of the underlying case, where the decision is incomprehensible and falls short of revealing any legal reasoning that led to the decision, the question of whether such a decision fulfills the requirements of Rule 68(2) EPC1973/Rule 111(2) EPC requiring a decision to be reasoned. In this context, the Board stated:

For these reasons, in the Board's judgement, the decision under appeal which is based on such a deficient reasoning is not 'reasoned' in the sense of Rule 68(2) EPC. This failure amounts to a substantial procedural violation requiring the decision under appeal to be set aside and the case to be remitted to the first instance. The appeal is thus deemed to be allowable and the Board considers it to be equitable by reason of that substantial procedural violation to reimburse the appeal fee in the present case (Rule 67 EPC).

It is thus incumbent on the EPO's examining or opposition division to provide a comprehensible, reasoned decision.

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Headnote:

1. The reasoning of a decision under appeal must be taken as it stands. The requirements of Rule 68(2) EPC cannot be construed in such a way that in spite of the presence of unintelligible and therefore deficient reasoning, it is up to the Board or the Appellant to speculate as to what might be the intended meaning of it.
2. The Board must be in a position to assess on the basis of the reasoning given in the decision under appeal whether the conclusion drawn by the first instance was justified or not. This requirement is not satisfied when the Board is unable to decide which of the various inconsistent findings indicated in and justifying the decision under appeal is correct and which is false.
3. A decision of the European Patent Office open to appeal which is based on such a deficient reasoning is not 'reasoned' in the sense of Rule 68(2) EPC, which failure amounts to a substantial procedural violation.

The full text of the decision can be accessed here.