tag:blogger.com,1999:blog-8990057754240336385.post5258135065903104565..comments2024-02-27T09:18:36.160+01:00Comments on DeltaPatents Case Law blog: T 1750/14 - New applicant, new representative & upcoming oral proceedingsDeltaPatentshttp://www.blogger.com/profile/07830354704918972593noreply@blogger.comBlogger1125tag:blogger.com,1999:blog-8990057754240336385.post-43609927367342581332017-04-09T09:24:21.473+02:002017-04-09T09:24:21.473+02:00In all logic, there is a link between the date set...In all logic, there is a link between the date set for oral proceedings and the final date under R 116(1) to file submissions. The date for final submissions depends directly and unambiguously from the date set for the oral proceedings. <br /><br />The only reasonable way to change the date for filing submissions would thus be to move it forward, for instance two instead of one month. If the date for filing submissions is moved closer, whilst legally possible, would not be really fair to the parties. Whilst in principle the time limit to summon to oral proceedings has to be at least two months [R 115(1)], any time limit under R 116(1) should be a minimum of one month.<br /><br />Whatever position one adopts, R 116(1) is not a deadline which implies any loss of rights. A submission can be filed after the deadline under R 116(1), but then the question of its admissibility has to be raised.<br /><br />Here the division, be it an examining or an opposition division, has a degree of discretion. That this discretion should be exercised properly goes without saying. In examination, R 137(3-5) applies for any request, whether filed before or after the time limit. In opposition, any evidence filed by the opponent being after the opposition period, is prima facie late (exceptions possible), and any request filed after the final date is then late and both have to undergo an admissibility check. <br /><br />On the other hand, if an extension of a time limit under R 132 has not been requested before its expiry, it results in examination in a loss of rights, which can be overcome by further processing. In opposition, a quick decision of the division can follow. <br /><br />That the examining division committed a substantial violation is clear and the consequence as well. <br /><br />What is interesting as well, is that the BA made clear that the professional representative - must or should have known- that he could have filed requests after the final date. By not doing this, the appeal fee was not reimbursed. It would be interesting to know how the applicant will react to this statement in the decision, but we will never know. <br /><br />T 37/97 is not the only decision in which the change of applicant was not considered a reason justifying postponement of the oral proceedings. <br />In T 301/08, see Point 1 of the reasons, the BA held that “a change of representative, [is] a matter wholly within the purview of the appellant, [and] does not constitute an adequate reason either for issuing a further communication or for postponing the oral proceedings”. The BA also stated that “serious substantive reasons are necessary for a change of date to be agreed”. One can thus conclude that a change of representative is not a serious reason. <br /><br />In the present case the examining division was thus perfectly entitled to refuse postponement of the oral proceedings and to change the date for final submissions. It should simply have done it correctly. <br />Robinnoreply@blogger.com