Tuesday, 6 October 2009

T 869/06 - Business Trips May Justify Postponement of Oral Proceedings

According to A 15(2) of the Rules of Procedure of the Boards of Appeal, a change of date for oral proceedings (OPs) “may exceptionally be allowed in the Board’s discretion”. Examples of circumstances that may be taken into account when exercising this discretion are given in the Notice of the Vice-President of DG3 dated 16 July 2007 concerning OPs before the Boards of Appeal.

The board accepts on the basis of the representative’s statement and the filed supporting evidence that he had arranged and booked the business trip on the date set for OPs before the notification of the summons and that a business trip arranged in advance of the notification of the summons is a serious substantive reason to request the change of the date for OPs. However, the request does not in fact correspond to any of the circumstances given in the Vice-President’s Notice as the present representative could have been substituted by another representative of the same firm.

The board notes that, in accordance with established case law (see e.g. T 1102/03 and T 1053/06), when deciding on a request for postponement of OPs, the discretion should be exercised considering the procedural economy, an optimised use of resources and capacities and the interest of the public.

In the board’s view, in such a case as this only an alternative date within a period of about two months from the date of the request is justifiable in view of the balance of interests of the parties and the public. The period of about two months arises from the fact that, except for when the parties consent, new summons have to be issued at least two months in advance of a hearing, so that dates within the two-month period from the date of the request could not be used for other cases. [2] 

Strange enough, the Board notes that the requirements of a postponement are not fulfilled (in particular because the attorney could have been replaced by a colleague from his firm) but then agrees to postpone. 

It is interesting to compare this with the findings of T 1080/99 [2.4] : “Valid grounds for a postponement concern an inability to attend OPs due to personal circumstances, such as serious illness, marriage or a death in the family, as well as holidays which have already been firmly booked, as well as an inability to take part in OPs because of a summons to other legal hearings notified to the party before the summons by the Board and also the performance of obligatory civic duties. All these reasons arise due to circumstances beyond the control of the party. A series of business engagements is not a valid ground, nor is excessive work pressure.” 

One could have argued that a business trip is a series of business engagements, but in the end it would be unfair to accept to postpone OPs because of firmly booked holidays but to refuse to postpone in case of a firmly booked business trip.

I should add that this decision also has an interesting statement on inventive step and the benefit of doubt :

The appellant argued that, although it admitted that D2 implicitly disclosed the use of advertising selection data, none of the documents on file disclosed that advertising selection data may be downloaded. In the benefit of doubt it should be assumed that it was not obvious to download advertising selection data.

The board is not convinced by this argument since the established case law of the boards of appeal does not refer to the benefit of doubt with respect to the assessment of inventive step. The present board notes that when assessing inventive step it has to be evaluated whether the skilled person would arrive to the claimed solution starting from the explicit and implicit disclosure of the prior art documents making use of the general common knowledge. [3.2]

To read the whole decision, click here.