Monday, January 14, 2019 T 2707/16 - waiting, waiting and still waiting

This examination appeal was lodged after exceptionally lengthy examination proceedings. 
The patent application in suit was filed on 30 November 2001 with a priority date of 30 November 2000. The European search report was transmitted to the applicant almost 5,5 years after the priority date. After timely filing the request of examination, the applicant receives the first communication of the Examining Division on 7 April 2008 to which he timely replies in August 2008. After more than 7 years, on 7 January 2016, the applicant receives the second communication (summons to Oral Proceedings) from the Examining Division! In the Oral Proceedings the Examining Division refuses the application for lack of inventive step (Art. 56, EPC).  
In the grounds of appeal the appellant requested that the application be granted  on the basis of a sole request and that the appeal fee be reimbursed.
At the end of oral appeal proceedings held on 25 April 2018, the BoA remits the case to the department of first instance for further prosecution.
In order to establish whether the appeal fee could be reimbursed under Rule 103(1), EPC, the BoA extensively argues (see reasons 16 to 34 of the decision), even by making reference, in line with the appellant, to the case law of the European Court of the Human Rights (ECHR), on whether the delay in the first-instance proceedings amounts to a substantial procedural violation according to Rule 103(1), EPC. The BoA concludes that indeed such a delay can be considered a substantial procedural violation (in line with T 823/11 but deviating from T 1824/15). However, the BoA considers the reimbursement of the appeal fee in view of the unreasonable delay not equitable because the applicant did not make clear by any action that he did not tacitly agree with the stagnation of the proceedings (see reasons 35 and 36).
Thus the BoA refuses the request of the appellant for the reimbursement of the appeal fee.

To date the proceedings are still pending and the applicant is requested to pay renewal fees for the 18th year to the EPO! 

Friday, September 28, 2018 T 1627/09 - self-recuse of Board of appeal after successful petition for review

Two board members recuse themselves

After the successful petition for review in R 2/14 of 22 April 2016, the case was remitted to the Board of Appeal that had originally decided not to set aside the opposition division's decision to revoke the patent. Upon remittal, the entire board that took that appeal-decision requested to be recused from the case  to avoid a potential perception of bias when they had to decide for a second time on the same issues (actually one member had already retired).  

Interestingly, an issue with Art. 24 also played during the petition for review when the Enlarged board had to decide if the Chairman of the Enlarged Board of Appeal could be allowed to perform both judicial tasks and executive tasks in his capacity as Vice-President Appeals. 

Tuesday, November 01, 2016 T 1824/15 - Delayed

The appellant has argued that two different delays in the first instance proceedings each amounted to a substantial procedural violation, Rule 103(1)(a) EPC, namely the delay of over eleven years in raising an inventive step objection based on D3 and the delay of seven months in issuing the written decision and minutes after the oral proceedings. In view of these issues, the board took this case considerably out of turn, well before it would otherwise have been started. As set out below, the board finds that, in particular because neither delay was contrary to a provision of the EPC, no fundamental deficiency, Article 11 RPBA, or procedural violation, let alone a substantial procedural violation, Rule 103(1) EPC, occurred. This does not however mean that the board is indifferent to the consequences of unjustified procedural delays. (r.2.1). 
The board deviates from T 823/11, where the Board concluded "that the duration of the first-instance proceedings was excessive, the written reasoning given in the communications was inadequate, and the contested decision is insufficiently reasoned within the meaning of Rule 111(2) EPC. These deficiencies amount to substantial procedural violations."

Saturday, May 16, 2015 R 8/13 - Call for a Diplomatic Conference

Prior to the oral proceedings in petition for review proceedings before the Enlarged Board in its five-member composition, the petitioners, by letter dated 2 June 2014, filed further submissions in support of their petition and, on pages 12 and 13 of those submissions, stated with reference to R 19/12 that: "In any event as an auxiliary measure and in order to safeguard the rights of the petitioners-patentees and not to be precluded in other proceedings, we herewith object to the chairman of the current composition of the Enlarged Board of Appeal in this case for suspicion of partiality in line with the reasoning of R 19/12".

The reader may find the below worthwhile in view of the EPO's Online consultation: Boards of Appeal (click here), where the The European Patent Office invites of users of the European patent system concerning to suggest and comment on possible improvements of the functioning of the Boards of Appeal with respect to both their autonomy and the perception of their independence and their efficiency. The user consultation will run until 30 June 2015.
The consultation is done in the context of a structural reform of its Boards of Appeal that has been launched by the European Patent Organisation. The main features of the proposed reform are described in the document (CA/16/15 (pdf)), which has been presented by the European Patent Office to the Administrative Council in March and has met with broad support. The aim of the reform is to ensure and increase the organisational and managerial autonomy of the Boards of Appeal, the perception of their independence as enshrined in Article 23 EPC, as well as their efficiency within the legal framework of the current European Patent Convention. 
See also the EPO News message of 30 April 2015.