Is it possible to request a remittal to the Opposition Division (OD) based on a substantial procedural violation committed against the adverse party, although this party does not wish to have the case remitted? This is a question that arose in the present appeal proceedings. However, the Board found a way not to decide on this issue.
[1.1.1] In response to the summons by the OD to the second oral proceedings (OPs) the representative of the opponent indicated that he had already booked a holiday on that date and requested that another date be set. The representative of the proprietor with letter of 4 January 2008 supported the request of the opponent, but expressed surprise that the representative of the opponent could not be replaced by another representative from the same practice. The opposition division did not change the date of the OPs. The representative of the opponent was replaced by another from the same practice and this representative stated at the OPs that he did not want a postponement of the OPs.
[1.1.2] The [patent proprietor] has argued that the OD committed a substantial procedural violation in not postponing the OPs at the request of the opponent when this request was supported by the proprietor.
The arguments of the [patent proprietor] concern the right to be heard of the [opponent]. The [opponent], however, does not consider that its right to be heard was infringed by the OD.
The question arises as to whether a request by a party based on an alleged infringement of the rights of another party is an admissible request.
In the present case the Board does not find it necessary to consider this question further since the request is manifestly without foundation.
[1.1.3] The opponent was represented in the second OPs before the OD by a representative who considered that he did not need a postponement of the OPs. It follows therefore that the right to be heard of the opponent was respected and that there was no procedural violation.
[1.1.4] The [patent proprietor] further argued that the availability of another representative from the same practice should not play a role since it concerns the internal relationship between the representative and his client. The Board notes that it was the proprietor who initially indicated […] that it was surprised that the representative of the opponent could not be replaced by another representative from the same practice.
The Board considers that in any case this somewhat inconsistent argumentation does not apply in the present case since the opponent chose to change its representative and does not consider that its right to be heard was infringed as a result of this change.
[1.1.5] The [patent proprietor] indicated during the OPs before the Board that it desired a general statement from the Board concerning the circumstances under which an OPs should be postponed.
The Board does not consider that it is a purpose of appeal proceedings to issue such general statements in circumstances where they are irrelevant for the case to be decided, irrespective of whether a Board should issue general statements at all.
The Board therefore declined to consider this point further.
[1.1.6] The Board concludes that no procedural violation was committed in this respect, let alone a substantial one.
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