Tuesday, 27 October 2009

T 95/07 - Always Duly Introduce Guest Artists

[…] A request was made that an accompanying person be allowed to speak at the oral proceedings (OPs).

According to G 4/95, it is required that the request for permission for oral submissions to be made by an accompanying person should state the name and qualifications of the accompanying person and should specify the subject-matter of the proposed oral submissions ([Order 3.(b).(i)]). It is also required that the request be made sufficiently in advance of the OPs so that all opposing parties are able properly to prepare themselves in relation to the proposed oral submissions ([Order 3.(b).(ii)]).

In the present case the attendance of the accompanying person, Ms Saeki was announced more than a month before the OPs. In this letter it was stated that Ms Saeki was “Manager of the IP Department of Asahi Kasei Corporation”. No further details of the qualifications of Ms. Saeki were provided. As regards the subject-matter of the proposed submissions, it was requested that the accompanying persons be permitted “to speak with regard to technical matter in support of submissions made by the undersigned representative”.

Whilst in some cases, for example where the accompanying person is identified as being the inventor, this information might be considered sufficient to establish both the qualifications and - at least in general terms - the subject-matter of the proposed submissions (cf. T 910/06 [5.9.5]), this does not apply when the accompanying person is, as in this case, identified solely as an employee of an opponent or an affiliated company of the opponent which employee further is not identified as performing a technical function associated with the subject-matter of the patent in suit, nor as having had any involvement, even peripherally, in the preparation of the disputed experimental data. As a consequence of this, it would not have been possible in advance of the OPs to understand - even in general terms - with respect to which technical aspects the requested submissions were to be made.

Under these circumstances the Board could only come to the conclusion that the preconditions set out in G 4/95 were not met and as a consequence refuse to authorise Ms Saeki to make oral submissions. [4.2.8]

To read the whole decision, click here.