Saturday, 11 September 2010

R 7/10 – Just Say It

Some time ago, I’ve reported a decision concerning request for re-establishment. An anonymous reader pointed out that a petition for review had been filed in this case and that this petition for review had little if any chances to succeed. Well, he or she was right on both counts.

In the petition for review, it was submitted that the Board of Appeal should have initiated a hearing of the assistant as a witness according to A 117 and R 117 to R 124 “as requested”. Without a statement of the assistant, the representative was not in a position to present all necessary evidence. As he had pointed out in the oral proceedings (OPs) before the Board of Appeal, he was not in a position to force the assistant to be present as a witness. Attempts to contact her had been unsuccessful. Since the assistant was not summoned by the Board, the representative did not have the full right to be heard guaranteed by A 113. Should this not be considered as a fundamental violation of A 113, it was submitted that “at least fundamental procedural defects occurred in the appeal proceedings”. As an auxiliary measure the petition was therefore based on A 112a(2)(d).

[1] The petitioner is adversely affected by the decision T 516/09 […] dismissing the appeal. The petition for review refers to the grounds of A 112a(2)(c) and (d). Assuming, in favour of the petitioner, that the invoked procedural defect […] might fall under the ground of A 112a(2)(c), the petition complies with the provisions of A 112a(l) and (2).

[2] The written decision in case T 516/09 was notified by registered letter posted on 26 February 2010. The two months period for filing the petition for review expired on Saturday, 8 May 2010. It extended, according to R 134, to Monday, 10 May 2010. This is the day on which the petition was filed and the fee was paid. The petition therefore also complies with A 112a (4).

[3] The Enlarged Board of Appeal (EBA) composed according to R 109(2)(a) will decide on the basis of the petition for review (R 109(3)).

A petition for review under A 112a(2) (a) to (d) is only admissible where an objection in respect of the procedural defect was raised during the appeal proceedings and dismissed by the Board except where such an objection could not be raised during the appeal proceedings (R 106). It therefore has to be examined whether the petitioner complied with this requirement.

[3.1] The petitioner has not commented on the issue of R 106. The petition neither contains any indication that an objection was raised during the appeal proceedings nor any explanation why such an objection could not have been raised.

[3.2] In view of the procedural defect invoked by the petitioner, the objection under R 106 EPC should have concerned the fact that the Board of Appeal intended to decide on the appeal without previously hearing the witness “as requested”. However, neither in the minutes of the OPs before the Board of Appeal nor in any other part of the file is there any indication that the appellant had objected to the closure of the debate by the Board without having heard the witness. It does not emerge from the file whether and, in the affirmative, in which form the appellant had requested that the assistant be heard as a witness and to which facts she should testify. In this connection it is observed that the Board of Appeal assumed in favour of the appellant that the assistant had health problems.

[3.3] The petitioner has not submitted that the minutes of the OPs before the Board of Appeal and/or the facts and submissions in the written decision were wrong or incomplete.

[3.4] It must therefore be concluded that the petitioner indeed failed to raise an objection under R 106 during the appeal proceedings. As a consequence, the obligation under R 106 has not been met for the procedural defect invoked by the petitioner under A 112a(2)(c). Therefore, as far as this ground is concerned, the present petition for review is clearly inadmissible.

[4] According to R 107(2) the petition shall indicate the reasons for setting aside the decision of the Board of Appeal, and the facts and evidence on which the petition is based. If the petition does not comply with this provision within the period under A 112a(4) EPC, it shall be rejected as inadmissible.

[4.1] Regarding the second ground for review under A 112a(2) (d) EPC raised “as an auxiliary measure”, the petitioner neither specified any of the grounds a) or b) as defined in R 104 EPC nor indicated any facts and evidence concerning one of these grounds, as required by R 107(2).

[4.2] Thus, as far as the second ground for review is concerned, the petition does not meet the requirements of R 107(2) and is clearly inadmissible for this reason. […]

The petition for review is rejected as clearly inadmissible.

We’ve seen this before, but I think this decision is a good reminder. So please bear in mind: when you feel that a Board is not handling things as it should, do not forget to raise an objection under R 106. Not doing so may kill a subsequent petition for review on purely formal grounds.

If you wish to download the whole decision (and parallel decision R 6/10), you can do so here.