A highly intriguing referral to the Enlarged Board, for multiple reasons: it concerns questions regarding the extent of the right to be heard (by a third party) and regarding the proper venue of oral proceedings (in the light of the much-debated relocation of the Boards of Appeal to Haar).
In the present case, during examination proceedings of EP2378735 third party observations (containing objections under Art. 84 EPC) had been filed by private practice firm Jostarndt Patentanwalts-AG. The patent was nevertheless granted. Jostarndt then lodged an appeal against the decision to grant, essentially arguing that, since clarity is not a ground for opposition, it felt deprived of its opportunity to object under Art. 84.
However, the Board found itself bound by the EPC - which only allows an adversely affected
party to the proceedings to appeal, the author of third party observations according to
Art. 115 EPC not being a party to the proceedings - and deemed the appeal inadmissible.
The appellant saw an unacceptable hiatus in legal protection and demanded clarification of this fundamental question by a decision. It therefore requested oral proceedings on the above question of admissibility.
Surprisingly, after having been summoned on 25 January 2019 for a hearing in the premises of the Board of Appeal in Haar, the appellant then requested transfer of these oral proceedings to Munich, arguing that the European Patent Office is headquartered there and, unlike The Hague, Haar is "not evidently intended as a place for acts or proceedings" in the European Patent Convention.
The move in 2017 of the Boards of Appeal from the Munich Isar building to the municipality of Haar - in a manifest attempt to increase the perceived independence of the Boards of Appeal - was met with dismay and criticism from both the Boards themselves and the public.
The present Board (3.5.03) considered in particular the question of the right venue of the Boards of fundamental importance for ensuring a uniform application of the law in all appeal proceedings, and decided to refer the following questions (loosely translated from the original German wording) to the Enlarged Board:
(1) In appeal proceedings, is the right to oral proceedings under Article 116 EPC restricted if the appeal is prima facie inadmissible?
(2) If the answer to Question 1 is yes, is an appeal against the decision to grant a patent prima facie inadmissible in this sense, which Appeal has been filed by a third party within the meaning of Article 115 EPC and which has been substantiated by arguing that there is no alternative remedy under the EPC against a decision of the Examining Division not to consider the third party’s objections concerning the alleged contravention of Article 84 EPC?
(3) If the answer to one of the first two questions is no, can the Board hold oral proceedings in Haar without violating Article 116 EPC, if the appellant complains that this location is not in conformity with the EPC and requests that the oral proceedings be moved to Munich?
Questions 1 and 2 are interesting for querying the extent of the right to be heard in proceedings before the EPO. Question 3 is likely to have the greatest impact, as it boils down to whether the President or the Administrative Council of the European Patent Organisation had the power to relocate the Boards (or departments of the Office within the meaning of Article 15 EPC in general) outside the locations mentioned in Art. 6(2) EPC or to whether "Munich" in Art. 6(2) should be interpreted merely as the city with that name (not including Haar) or a (not well-defined) greater Munich area. It would appear that the referring Board favors a more a strict interpretation of “Munich”.