The requirement for immediate and complete substantiation of a request for re-establishment corresponds to the principle of “Eventualmaxime/ Häufungsgrundsatz/ le principe de la concentration des moyens”, according to which the request must state all grounds for re-establishment and means of evidence without the possibility of submitting these at a later stage.
Dynamic interpretation of the EPC, as derived from Articles 31(1) and 31(3) Vienna Convention on the Law of Treaties, must take account of developments in national and international procedural law, notably as regards the guarantees of fair trial before a tribunal of law (Article 6(1) ECHR).
There is no “absolute” right to oral proceedings upon a party’s request, but it is subject to inherent restrictions by the EPC and procedural principles generally recognised in the Contracting States of the EPO. If oral proceedings do not serve any legitimate purpose, the requirement of legal certainty in due time prevents the Board from appointing them. It is not the purpose of oral proceedings in the context of proceedings for re-establishment to give the appellant a further chance to substantiate their factual assertions or to provide evidence despite the absence of factual assertions in the request for re-establishment.
Case date: 26 July 2023
Case number: J 0006/22
Court: European Patent Office (EPO), Board of Appeal
A full summary of this case has been published on Kluwer IP Law.