Monday, November 16, 2020 User consultation on insertion of new Article 15a (oral proceedings by videoconference) in the Rules of Procedure of the Boards of Appeal (RPBA 2020)

The EPO's Boards of Appeal Committee (BOAC) and the President of the Boards of Appeal of the EPO have invited users to take part in the consultation on proposed new Article 15a RPBA. The proposed article is available in the English version. The consultation can be found here.

This online consultation will remain open until 12.00 hrs CET on 27 November 2020.

The proposed text reads:

Article 15a Oral proceedings by videoconference

(1) The Board may decide to hold oral proceedings pursuant to Article 116 EPC by videoconference if the Board considers it appropriate to do so, either upon request by a party or of its own motion.

(2) Where oral proceedings are scheduled to be held in person, the Chair may allow a party, representative or accompanying person to attend by videoconference. In exceptional circumstances, the Chair may decide that a party, representative or accompanying person shall attend by videoconference.

(3) The Chair may allow any member of the Board in the particular appeal to participate by videoconference. 

Par. (1) thus provides that oral proceedings may be held by videoconference.

Par. (2) implicitly provides that oral proceedings may be held in person; par (2) explicitly provides for hybrid oral proceedings where  a party, representative or accompanying person may (voluntarily) or shall (mandatorily) attend in oral proceedings held in person.

Par. (3) provides that any member of the Board, also the Chair, may participate by videoconference; implicitly, it provides that any Board member may participate by videoconference in oral proceedings by video conference as well as in hybrid oral proceeding as well as in oral proceedings where all parties, representatives and accompanying persons and (presumably) some -but not all- Board members attend in person.

The text of the proposed new provision and some explanatory remarks are set out in the document that is available from the Download menu in the original message. 

The text of the invitation on the webpage is duplicated below in its entirety (emphasis added).

Friday, April 07, 2017 T 1750/14 - New applicant, new representative & upcoming oral proceedings

In the examination case under appeal, the then applicant's representative requested approximately 5 weeks before the scheduled oral proceedings the postponement of the oral proceedings and the postponement of the final date for making written submissions ("final date") on the grounds that he had been informed that the present application had been transferred from the then registered applicant to another applicant, and that he did not know whether he was to remain the representative. This request was refused by the examining division as it allegedly did not constitute a serious ground within the meaning of OJ EPO 1/2009, 68, point 2.3. The applicant appeals, and argues that his right to be heard was violated and that the decision was not sufficiently substantiated.

In considering the appeal, the board considers the request for the postponement of the date of oral proceedings to be distinct from the request for the postponement of the final date, and concludes that 
the examination division failed to sufficiently substantiate in its decision why the final date could not be postponed. The applicant's main request is thus held allowable.

There are interesting deliberations in this case. Does the situation indeed qualify as a serious ground as alleged by the appellant, even though it is not explicitly mentioned in  OJ EPO 1/2009, 68, point 2.3? Did the examination division have discretionary power in the first place to postpone the final date in view of Rule 116(1) EPC stipulating that Rule 132 shall not apply? And can the date of oral proceedings indeed be postponed independently from the final date or not?

Tuesday, November 29, 2016 T 628/14 - Within time limit for making written submissions, but too late

In this opposition appeal, an opponent submitted new documents in response of the invitation to oral proceedings under Rule 116(1) EPC ("When issuing the summons, the European Patent Office shall draw attention to the points which in its opinion need to be discussed for the purposes of the decision to be taken. At the same time a final date for making written submissions in preparation for the oral proceedings shall be fixed. Rule 132 shall not apply. New facts and evidence presented after that date need not be considered, unless admitted on the grounds that the subject of the proceedings has changed."). The documents were not admitted in the proceedings as they were late filed and prima facie not relevant. The Board emphasized that the invitation for written submissions should, according to established case law, not be construed as an invitation to file new evidence or other material departing from the legal and factual framework of issues and grounds pleaded as established with the notice of opposition. The Board also reviewed that it is at the first-instance division's discretion to admit late filed documents or not, and concluded that the first instance division did not exercise its discretion in an unreasonable way as it had assessed the prima facie relevance of both documents.