Monday, 21 September 2009

T 69/07 - On the Courteousness of epi-Members

A summons to oral proceedings (OPs) was issued by the Board on 7 November 2008, not long after the request for OPs by the respondent. [1.1]

The respondent did not appear at the OPs at the appointed time. After waiting some time to allow for a small delay in the arrival of the representative of the respondent the registrar of the Board telephoned this representative. The representative indicated in the telephone conversation that it had been decided the day before the OPs that the respondent should not be represented at the OPs. [1.2]

The Board notes that in accordance with Article 6 of the code of conduct of members of the EPI, of which the representative is obligatorily a member, the members are required to act courteously in their dealings with the EPO. [1.3]

The representative of the respondent had sufficient time to inform the Board of its intended non-appearance at the OPs, i.e. by informing the Board by telephone immediately after the decision not to attend was taken. This would have avoided that the other party and the Board first of all courteously waited for the representative of the respondent in case he had unintentionally been delayed, and then that the registrar of the Board had to carry out enquiries to establish if it was intended that the representative would attend the OPs. [1.4]

The facts of the case dealt with in decision T 954/93 were similar to those of the present case in that a party did not appear at the OPs without informing the Board beforehand, causing telephone calls and a delay in the start of the OPs. In that case the deciding board considered that the actions of the representative were “reprehensible”. The present Board agrees with that decision and considers that the views of that Board also apply in the present case. [1.5]

To read the whole decision, click here.

As in the well-known decision T 930/92, the Board could have ordered apportionment of costs under A 104, but apparently it did not do so, perhaps simply because the patentee/appellant did not request it.