Saturday, 31 October 2009

T 601/06 - Too Late for Liberation

The appellant requested in its letter dated 3 April 2009 that the oral proceedings (OPs) be postponed for the reasons that 5 May 2009 was a public holiday in the Netherlands [Liberation Day], the appellant’s representative had firmly booked a holiday for that date and there was no other representative available to replace him due to the holiday season. The representative indicated that the other party had orally agreed to the request.

According to Article 15(2) of the Rules of Procedure of the Boards of Appeal (RPBA), a change of date for OPs “may exceptionally be allowed in the Board’s discretion”. Examples of circumstances that can be taken into account by exercising this discretion are given in the Notice of the Vice-President of DG3 dated 16 July 2007. According to this notice serious substantive reasons to request the change of the date may be, for instance, a previously notified summons to OPs of the same party in other proceedings before the EPO or a national court, serious illness, a case of death within the family, the marriage of a person whose attendance in OPs is relevant, military service or other obligatory performance of civic duties, or holidays which have already been firmly booked before the notification of the summons to OPs. Any request to fix another date shall be filed as soon as possible after the grounds preventing the party concerned from attending the OPs have arisen.

Although the board accepts on the basis of the representative’s statement with respect to the major importance of this holiday to him and his family that he had a firmly booked holiday on the date set for OPs before the notification of the summons, the board considers the request to be late filed. The representative should have been aware when receiving the summons, i.e. at the end of February, that he would be prevented from attending the OPs and should have filed his request immediately. Filing the request more than one month later is not considered to fulfil the requirement of “as far in advance of the appointed date as possible” as required under Article 15(2) RPBA or “as soon as possible” as required in the Notice of the Vice-President of DG3. Therefore, the request does not satisfy the conditions given in the Vice-President’s Notice and in the Rules of Procedure.

[…] In view of the presented importance of the holiday for the representative, as a courtesy the board therefore made an attempt to fix a date within a period of about two months from the date of the request. As no alternative date suitable for the five-member board could be agreed with the parties, the date of 5 May 2009 for the hearing was maintained.

The representative of the appellant argued that, considering the need for consulting the client and the opponent, his request for postponement was not late filed and that the request had to be granted. This argument does not convince the board. The reason for the request was a firmly booked holiday of the representative, i.e. a personal reason. It would not be usual for the representative to need the consent of his client before filing such a request based on a personal reason. […] Even assuming that all the consultations mentioned by the appellant’s representative were necessary, the use of modern communication means and according the appropriate urgency to the matter should not result in a delay of more than a few days.

[…] Taking into account the specific circumstances (a case of death within the family), the request for postponement in [T 514/06] was not late filed. Thus, the decision to refuse the present request maintains a uniform application of the law. [2.1]

To read the whole decision, click here.