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! 

Sunday, January 10, 2016 T 823/11 Excessive length of proceedings

The Board of Appeal considered the examination proceedings excessively long (11 years between supplementary search report and oral proceedings). This was seen as a substantial procedural violation. The same holds for the lack of reasoning in the communications and decision of the examining division. The Board sets out the case law on both issues.
The Board does not remit the case but takes over and orders the auxiliary request (which was not admitted by the examining division) to be granted.

Friday, January 01, 2016 T 2411/13 - applicants response overlooked

In the decision to refuse, the Examining Division stated that the applicant had already been informed about failing the EPC requirements in an earlier communication. The Examining Division also stated that no comments had been filed in response to that earlier communication. The latter statement was however not correct: the applicant has filed a letter with arguments. The Board decided it an infringement of the right to be heard, resulting in an insufficiently reasoned decision, and a substantial procedural violation.

Friday, November 13, 2015 T 2068/14: a right to oral proceedings by video conferencing?

AT&T picturephone

During the examination and during the appeal procedure, the appellant (applicant) requested oral proceedings held by video conferencing. The examining division refused oral proceeding by video conferencing. In the appeal procedure, the appellant argues that refusing the oral proceeding by video conferencing is a substantial procedural violation. Not long before the scheduled oral proceedings of the appeal procedure, the appellant requested a re-scheduling of the oral proceedings of the appeal procedure and requested oral proceedings to be held by video conferencing. Also, with respect to "does the applicant have the right to oral proceedings by video conferencing", the appellant requested a referral of three questions to the Enlarged Boards of Appeal. It seems that the appellant finds it unfair that applicants who have appointed a professional representative who is not located close to Munich or The Hague have to bear higher costs for attending the oral proceedings. This decision of the Board discusses whether (and why) one has (or has not) the right to oral proceedings by video conferencing.