tag:blogger.com,1999:blog-8990057754240336385.post2057778484272612485..comments2024-02-27T09:18:36.160+01:00Comments on DeltaPatents Case Law blog: T 861/12: attending two oral proceedings at the same time is not possible, however...DeltaPatentshttp://www.blogger.com/profile/07830354704918972593noreply@blogger.comBlogger11125tag:blogger.com,1999:blog-8990057754240336385.post-16613370109484442922016-04-27T18:41:53.868+02:002016-04-27T18:41:53.868+02:00Any contribution is worth making and any discussio...Any contribution is worth making and any discussion can bring matters forward. By refusing a discussion nothing is to be gained. It is certainly not a question of a prevailing opinion. <br />I fully understand and agree that the requirements set by the Boards are difficult to meet, and bring about difficulties for parties and their representatives, but they are there, whether we like it or not. Just look at case law and draw reasonable conclusions. <br />Even in first instance the situation has changed since 2009, when the conditions for postponement have been eased. One could just wonder why.<br />If you do not like to face reality and prefer to stick your head in the sand, please do not complain later that your bottom has been smacked. Indeed, no more needs to be said.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-12617195312428618062016-04-25T16:43:07.013+02:002016-04-25T16:43:07.013+02:00What should prevail? One's own conviction that...What should prevail? One's own conviction that a certain decision is justified? Or an assumption that the other party does not want to get into a certain discussion with you?<br /><br />"No more needs to be said."Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-84387659008877896992016-04-24T08:44:40.998+02:002016-04-24T08:44:40.998+02:00To Anonymous "argue why":
"Argue wh...To Anonymous "argue why":<br />"Argue why" is certainly a good idea, but this is exactly the type of discussion the Boards do not want to enter. Just take a look at the decisions T 2522/10, T 699/06, T 1610/08 or R 3/08. No more need to be said. <br /><br />To "clever" representative of 20.04-20.13:<br />If you really think that such tricks would eventually help your client and the whole firm of representatives you are either naive or living on another planet. There is nothing to wonder about it. It can only be detrimental to your cause.<br />When you see how the Board was displeased in the present case, would you on top of this take the risk of being know as an awkward party/representative? This is probably the case of the present representative/party.<br />Exactly as representatives know "difficult" examining/oppositions or Boards, the mirror image is true as well. After all we are all human.<br />In behaving in such a matter do not be surprised that in the future any possible discretion which could go in your favour will not be exercised to your advantage. This does not mean that decisions will be against the law. But things are never black or white, and grey has lots of nuances, and a decision can go in one direction or another and still be perfectly reasonable and arguable.<br /><br />To sum it up and in the same vein, T 1094/07 illustrates another possibility which has not been proposed above here. In T 1094/07, one day before the OP before the ED, the representative gave up his mandate and requested postponement. The OP took place in absence of the representative/applicant.<br />Although interlocutory revision was eventually granted, the appeal fee was not reimbursed. Look especially at Point 3.1 of the reasons! So even giving up the mandate does not help! Here again, no more need to be said.<br /><br />To be honest, the discussion should come to an end. Just keep in mind that the BA are not willing to postpone for reasons they consider not valid. And we all should know what they are.<br /><br />Rather than devise some clever way to force BA or divisions to postpone, please use your energy for more intelligent things.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-62026108415970417152016-04-20T20:13:51.168+02:002016-04-20T20:13:51.168+02:00I onder what would have happened if the representa...I onder what would have happened if the representative's firm would have informed the applicant that it can no longer represent the applicant because quality standards can not be met as the most appropriate representive is not available.<br /><br />And then the applicant informs the BOA that it finds itself unrepresented at short notice in such complex technical and legal file, can OPs please be postponed so that another representative may study the case and represent the applicant?<br /><br />And then, once postponed, the original firm finds itself in a position again to represent again the applicant, who is happy to come back.... problem solved.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-13125940855171498192016-04-14T15:40:08.155+02:002016-04-14T15:40:08.155+02:00Just for statistics, I would like to add that we h...Just for statistics, I would like to add that we had several requests for postponements of oral proceedings allowed last year, and to my knowledge none of the requests detailed on why another attorney cannot take over the case. Reasons were in most cases two oral proceedings on the same day (all in fall/winter, for some reason), one was due to sickness of the representative. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-70983553812627272872016-04-13T13:04:00.083+02:002016-04-13T13:04:00.083+02:00Anonymous 9 April 2016 at 20:06: please note "...Anonymous 9 April 2016 at 20:06: please note "argue why". I did not say that a preference per se will suffice, or that the request is necessarily going to be granted. Apparently, for that, a very good reason is needed, indeed. (As you well pointed out.)Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-32685397333603868872016-04-11T21:40:46.390+02:002016-04-11T21:40:46.390+02:00If the board had allowed the request for postponem...If the board had allowed the request for postponement, it would likely not even have been mentioned in the decision and therefore have gone unnoticed. Boards may have the right to refuse a request for postponement, but they do not have the obligation. We just don't notice it when postponement is granted.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-63393753655504298282016-04-11T12:55:24.194+02:002016-04-11T12:55:24.194+02:00I honestly do not think that the position of the B...I honestly do not think that the position of the BA would have been any more lenient if complicated issues had been at stake.<br /><br />It is a general position of the BA that any requests for postponement which are not accompanied by a reason why another representative cannot replace the original one are doomed to fail. As said above, the notion of representative of choice is a notion foreign to the BA. One may like it or not, but it is fact.<br /><br />Even if since 2009, the reasons for which a request for postponement of OP before an Examining or Opposition Division can be granted have been enlarged, the last version of the Guidelines E-II-7 has made the following clear: <br />"If during the procedure substantive submissions were made by several representatives of a firm, an indication must be given why none of those who previously made such submissions can present the case at the oral proceedings, i.e. why the representative who cannot attend is essential or why the others are also unable to attend."<br /><br />After being more lenient for a while, Examining and Opposition Division will not accept postponement if one of a plurality of representatives from the same firm having acted in a file is not able to attend at the proposed date. <br /><br />So even in first instance the notion of representative of choice is not so strong that it can help postponing an OP.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-18878189376101302292016-04-10T15:25:35.646+02:002016-04-10T15:25:35.646+02:00What might have played a role here is that there w...What might have played a role here is that there was little to discuss at the oral proceedings. The appeal fee had been paid, but no notice of appeal had been filed. No request for re-establishment was filed. So the appeal was going to be inadmissible. Insisting on oral proceedings in such a situation is, well, the appellant's right. But then the board has the right to refuse a lazily substantiated request for postponement. (Really, how is having met the client personally going to help you in a case like this... at least try to explain that, if you're half serious.)<br /><br />Had the case been about complicated issues of inventive step, or about complicated factual situations relating to a request for re-establishment, the board might have granted the request without asking further questions.<br /><br />Let's see if the appellant will now file a petition.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-26157208369254763762016-04-09T20:06:13.458+02:002016-04-09T20:06:13.458+02:00Dear anonymous of 08.04.2016: that is exactly the ...Dear anonymous of 08.04.2016: that is exactly the type of argument the Boards do not want to hear! The decision is abundantly clear in this respect.<br /><br />There is a long line of case law according to which a request for postponement is not granted if there is no explanation as to why another representative, be it from the same firm, or even from another one cannot represent the client.<br /><br />The notion of representative of choice is not a reason to postpone oral proceedings. That changing representative is also a question of costs is irrelevant for the BA. See for instance T 2522/10, T 699/06 or <br />T 1610/08. <br />Even a request for postponement, so that a representative of choice could act before the EBA when hearing the admissibility of a petition for review was not allowed exactly for this reason, see R 3/08.<br />No more need to be said, or? Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-39382017588790218852016-04-08T17:07:43.601+02:002016-04-08T17:07:43.601+02:00A messy tactic indeed. Why not just argue why one ...A messy tactic indeed. Why not just argue why one representative would be preferred over another, even though both were appointed?Anonymousnoreply@blogger.com