Thursday, February 15, 2018 T 447/13 - Trivially or seriously ill?

Better send in a doctor's certificate?

In the present case, the professional representative became ill before the scheduled OP, and excused him/herself by a phone call and subsequent letter indicating that he/she had "take[n] ill" while requesting the OP to be rescheduled. The request was refused by the ED for the reasons that the representative referred in his letter only to illness and not to serious illness, and that the request was not accompanied by a substantiated written statement indicating the reasons.

The Board now deals with this matter in appeal, and finds that the ED did not properly exercise its discretion but rather took an unreasonable approach based on a wrong principle.

Catchwords:
For the purposes of deciding whether to grant a request for postponement of oral proceedings on grounds of illness, the reference to "serious illness" in the Guidelines means an illness which is sufficiently serious to prevent the representative travelling to oral proceedings and presenting the case on the appointed day (Reasons, point 5.3).

Where a request for postponement of oral proceedings is refused on the ground that the request was not sufficiently substantiated, it is incumbent upon the Examining Division to explain why it considers the substantiation insufficient. In other words, it should state in clear terms what, in its opinion, should have been submitted or explained, but was not (Reasons, point 6.4).

Friday, October 13, 2017 T 0231/13 - No inventor needed, a professional representative is enough

At the opening of the oral proceedings their postponement was requested, because one of the inventors, who wished to accompany the professional representative, could not be present due to serious illness that required medical intervention. This was proven by a medical certificate dated 28 July 2017 and filed during the oral proceedings. The applicant submitted that the request for postponement could not have been made before because the need for medical intervention had been sudden and the representative had been informed of it only the evening before the oral proceedings. The Board denied the request, as it was not made as soon as possible, and because the party was duly represented. 

Friday, July 22, 2016 T 1663/13: apportionment of costs of appeal procedure

This appeal has been filed after a decision of the Opposition Division and the decision relates to the apportionment of costs of the appeal procedure.
In this case it is not the first time that apportionment of costs is a subject of the discussion. Also during the Opposition procedure, in view of the fact that the Opponent had informed the EPO only at a very late stage that it would not attend the oral proceedings, the Opposition Division decided that the proprietor's request for apportionment of costs was justified and ordered that its travel and accommodation costs be borne in full by the Opponent.
The Opponent filed the appeal. In his statement of grounds he argued that the patent should be revoked. He did not appeal to the decision of the apportionment of costs. Three days before (first) scheduled oral proceedings of the Appeal, the Opponent (Appellant) withdrew its request for oral proceedings and withdrew the appeal. Thereafter the proprietor requested apportionment of costs for the costs that he made with respect to the appeal procedure. After some communication in writing, the Board summoned the parties for (second) oral proceedings to discuss the apportionment of costs of the appeal proceedings. The proprietor informed the Board that he would not attend the (second) oral proceedings. The Opponent requested one day before the (second) oral proceedings a postponement of the (second) oral proceedings. 
This decision discusses whether the (second) oral proceedings will be postponed and discusses the apportionment of costs of the Appeal proceedings. The history of the file seems to influence the decision.

Friday, April 08, 2016 T 861/12: attending two oral proceedings at the same time is not possible, however...

In this appeal from an opposition one of the professional representatives requested a postponement of the oral proceedings because he has to attend another oral proceedings at the same date at the same moment in time. The Board acknowledges that one person cannot be present at two locations at the same moment in time. However... in line with a "Notice of the Vice-President of Directorate-General 3 of the European Patent Office" one should also argue why a colleague is not able take over the case and attend the oral proceedings. The Board does not accept general arguments like "there is a special relationship between the client and the professional representative" - this must be substantiated. 
At a certain point in time the Board communicated to the representative that the oral proceedings are not going to be postponed. The Board also pointed to the power of attorney in which the professional representative and his colleagues were appointed by the client. Thus, according to the Board, the client indicated that he accepts that different persons act on their behalf. Shortly after receiving this letter, the professional representative changed the original power of attorney such that his colleagues were not anymore appointed by the client.  According to the Board this is not according to the principle of "good faith". Don't mess with the Board of Appeal.