Wednesday, 9 February 2011

T 485/09 – Be Quick

If you want to postpone oral proceedings (OPs) before a Board of appeal you have to have good reasons: indeed, the EPO has published an exhaustive list of situations that may justify a change of date, such as previously booked holidays, for example. But even in case you cannot attend OPs for one of the reasons accepted by the EPO, make sure you inform the Office as soon as possible.

In the present case, the parties were summoned to OPs scheduled to take place on November 17, 2010 in a communication dated August 10 and received on August 12. On September 17, the appellant’s representative requested postponement of the OPs because he had already booked a vacation at the date of the OPs. He argued that his substitution by another representative of the same firm or of an outside firm would give rise to substantial additional and unnecessary costs. Concerning the late filing of his request the representative stated that he had just “returned from a week of absence from the office, which was preceded by several consecutive full day meetings”.

[2.1] In accordance with the notice of the Vice-President of Directorate-General 3 dated 16 July 2007 (Special edition No. 3 OJ EPO 2007, H1) a change of date for OPs may be requested if, amongst other reasons, it clashes with firmly booked holidays. This appears to correspond to the present case and proof regarding the booking of the holidays was supplied. A change of date may therefore normally have been granted.

[2.2] When a summons to OPs is received an attorney will normally immediately consult his work diary to check his availability. The work diary of an attorney should necessarily contain booked holidays, since although they are private matters they mean that the attorney is not available on those dates. Such a check requires a matter of minutes and even writing a letter explaining the situation takes little time. A rapid indication of the situation to the Board can therefore be expected.

[2.3] In the present case the attorney waited five weeks before informing the Board of his non-availability. The attorney explained that he had just returned from a week’s absence and that beforehand there had been some day-long meetings. This may explain the last two weeks, though even some day-long meetings might not exclude informing the Board of the non-availability. This does not, however, explain why no action was taken during the first three weeks after receipt of the summons. Since the clash of dates would have been immediately apparent there is no reason why a prompt response could not have been given.

[2.4] The Board considers that an attorney who wishes a change in the date of OPs has an obligation to inform the Board promptly of this desire. In the present case the attorney did not do this, so that the Board considered it was not appropriate to change the date.

[2.5] The attorney argued that it was inappropriate for the case to be taken over by another attorney because of the extra cost involved. The said notice of the Vice-President does indeed require (see point 2.3 thereof) that the request for a change of date should explain why a change of representative is not possible instead. This consideration could have applied to a prompt request.

However, the Board considers that when the attorney does not act promptly but allows a number of weeks to go by before acting then it must accept that this may result in extra costs.

Should you wish to download the whole decision, just click here.

To have a look at the file wrapper, click here.

NB: I owe the knowledge of this decision to my friend Manolis. 

Posts on related decisions can be found here, here and here