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).

Tuesday, July 14, 2020 T 1378/16 - Oral proceedings before the Board held by videoconference

The oral proceedings in the present case took place on 8 May 2020 and were the first held by videoconference in the history of the Boards of the Appeal of the EPO. Unlike some national legal systems, the EPC does not stipulate explicitly the form(s) in which oral proceedings under Article 116 EPC shall take place. For these reasons, the Board considers it appropriate to address briefly the legal basis for oral proceedings within the meaning of Article 116 EPC.

Tuesday, November 17, 2015 T 0740/15 - Two substantial procedural violations in one case

It may seem awkward that an opponent wants to continue an opposition even though the opposed patent has lapsed for all designated contracting states during opposition. However, in this particular case, the proprietor did not explicitly surrender his rights in the designated contracting states. Hence, the opponent could not be 100% certain that the proprietor would not try to restore any rights in any of the states as soon as the opposition proceedings would have been terminated. As a result the opponent expressed the wish to continue with the opposition and requested oral proceedings before any decision was reached. Nevertheless, the opposition division terminated the proceedings. This, as the Board in this case clearly indicates, is a substantial procedural violation and is an 'infringement' of Art 116(1) EPC. One may wonder why the opposition division came to their decision although the right to oral proceedings (when requested) is so firmly established in the EPC and the case law of the Boards of Appeal. Even worse, their issued decision did not contain any reasoning, which is also in breach with Rule 111(2) EPC: decisions that are open to appeal should be reasoned. Two substantial procedural violations justifying reimbursement of the appeal fee, in one single case.

Summary of Facts and Submissions

I. The appeal by the Opponent lies from the decision of the Opposition Division dated 18 February 2015 to discontinue the opposition proceedings against European patent No. 2 067 820 (Form 2351).

II. An Opposition had been filed against the patent on 27 January 2012 on the grounds of lack of sufficiency, novelty and inventive step. Oral proceedings were requested as an auxiliary measure.

III. The proprietor responded with a letter dated 17 September 2012, requesting to maintain the patent in amended form according to a new main request or two auxiliary requests filed therewith.

IV. On 11 August 2014, a communication pursuant to Rule 84(1) EPC was sent by the opposition division stating that the opposed patent had been surrendered or lapsed with effect for all the designated contracting states. In the communication it was stated that "the opposition proceedings may be continued at the request of the opponent, provided that within two months from notification of this communication a request is so filed." The communication further advised that the opposition proceedings would be discontinued if no such request was filed in due time "and the state of the files give no grounds for the proceedings to be continued by the European Patent Office".

V. The opponent filed a response to the communication on 15 September 2014, in which it was requested that the opposition proceedings "be continued". It was also stated that "for the avoidance of doubt, the Opponent maintains its previous arguments against the Patent and its request for oral proceedings.".

VI. On 18 February 2015, the opposition division issued the decision to discontinue the opposition proceedings.

Tuesday, June 30, 2015 T 1775/12 - Second Oral Proceedings

If an application is granted on a request filed during oral proceedings, does that applicant have a right to second oral proceedings if that request is refused? 

To set the context, I'll summarize the prosecution history. In 2008 this application was filed as one of four divisionals. During prosecution two official communications were sent under art. 94(3), after each of which an amended claim set was filed. In response to a summons for oral proceedings a further amended claim set was filed. During the oral proceedings, an auxiliary request was filed, followed by an amended auxiliary request. The latter was then granted.

After receiving the intention to grant communication (R.71(3)), the applicant files a new request. The new claim set has been broadened with respect to the granted claim set by deleting a feature. In the ensuing correspondence, the applicant request new oral proceedings "as a matter of precaution", however the Examining division now refuses the application without granting a second oral proceeding.

The board of appeal sides with the applicant and finds that his right to be heard was violated. The case is remitted and a second oral proceeding is to be held. It appears however, that the second oral proceedings may be limited to the issue of admissibility.

The board provided the following catchwords: