Friday, August 17, 2018 J 0016/17 A rose with no name does not smell as sweet

The appeal in this case was directed to a decision to refuse  a request for re-establishment of the missed period for paying a renewal fee with surcharge. While studying the facts of the case, the Board noted that the impugned decision did not state the name of the EPO employee responsible, but merely bore the seal of the "Examining Division". Although this deficiency was not raised by the appellant, the Board examined the facts of its own motion, because it deemed that inalienable rights constituting an embodiment of the rule of law are concerned.

Rule 113(1) EPC requires that communications from the EPO shall be signed by and state the name of the responsible employee. The signature may be replaced with a seal if the document has been produced using a computer and, if it has been automatically produced, R. 113(2) further defines that the employee's name need not be present. Since a decision to refuse a request for re-establishment must be a reasoned decision, it cannot be an "automatically produced" document. The Board held that the presence of the employee's name is an essential step in the decision-taking process and that the deficiency in this case constituted a substantial procedural violation. 

The procedural violation had no bearing on the substance of the decision, which concerned the inadmissibility of the request for re-establishment, and so to avoid further delays in proceedings, the Board took its own decision on the merits of the appeal. The decision to refuse re-establishment of rights was upheld on the basis that the appellant did not complete the omitted act (payment of renewal fee and surcharge) within 2 months' of removal of the cause of non-compliance.

Monday, June 18, 2018 R 7/16 - Decision on remittal before discussing substantive issues

The auxiliary police... could they have helped the petitioner?

This case is a petition for review following an appeal against a decision of the opposition division. Briefly speaking, auxiliary request V was held allowable during the opposition proceedings, but was found to contravene Article 100(c), 123(2) EPC during the appeal proceedings.

In its written decision (the decision under review), the BoA found that the decision of the opposition division presented a fundamental deficiency. Despite the fundamental deficiency, the BoA decided not to remit the case to the opposition division, thereby exercising its discretion under Art. 11 RPBA.

The petitioner's argues in the petition that the substance of the issues, to which the fundamental deficiency pertained, was not taken into consideration by the BoA when the remittal was discussed, and that this represented a fundamental violation of Article 113 EPC.

The EBoA notes that a detailed discussion of the substantive issues before a decision on the remittal would have rendered any remittal pointless since the first instance would have been bound by the considerations of the Board of Appeal or could have expected that its decision would be reversed if it was not in line with the considerations of the Board of Appeal. It was therefore only logical to limit the discussion on the requested remittal to procedural aspects. See also points 3.2.5 and 3.2.6.

Friday, February 12, 2016 R 0018/14 - Different understanding of issue

"The poetry of logic"

In this petition for review, the petitioner argued that its right to be heard has been fundamentally violated in that the debate which took place during oral proceedings lacked essential aspects in respect of novelty of independent claim 1; these only appeared in the reasoning of the written decision and were said to be entirely new for the petitioner.

During oral proceedings before the Enlarged Board, the petitioner explained that when a Board of Appeal intends, as in the present case, to depart from a common logical reasoning, it should inform the parties in advance so that they have an opportunity to react in an appropriate manner.