Saturday, 5 May 2012

T 663/10 – The Absent Guest

The EPO has to grant requests for oral proceedings (OPs) – at least once – but you cannot expect the Office to hold OPs if you announce that you will not attend them, even if you maintain your request, as the present decision shows.

[1.1] In the present case the scheduled OPs would have been public, A 116(4). Since there are at present no facilities which would permit the Boards of Appeal to hold public OPs by video conference or indeed an established procedure for holding public OPs by video conference, the appellant’s request “for an opportunity ... to choose” that the OPs be held by video conference was rejected (following T 37/08 and T 1266/07). With the summons to attend the OPs the appellant was informed accordingly.

[1.2] In response to the board’s communication which was annexed to the summons, the appellant informed the board that it did not intend to attend the OPs and requested that the merits of the case be considered by the board and a final decision be reached. The appellant further stated that
“For the avoidance of doubt, the expression of this current intention should not be misconstrued as withdrawal of the request for OPs.”.
[1.3] According to A 116 OPs shall take place either at the instance of the EPO if it considers this to be expedient or at the request of any party to the proceedings. OPs serve the purpose of giving a party to the proceedings the opportunity to present its case orally and, if the board considers it appropriate, the purpose of discussing orally any outstanding objections. If a party informs the board that it does not intend to attend the OPs, the board is not obliged to hold OPs in the absence of the party. Rather, under these circumstances and irrespective of whether or not the appellant explicitly maintains its request for OPs, it is within the discretion of the board to decide whether the scheduled OPs are to be maintained or to be cancelled (following T 910/02 [6]).

[1.4] In the communication accompanying the summons, objections under, inter alia, A 52(1) in combination with A 56 were raised in respect of claim 1 of each request on file. Further, the appellant was informed that at the OPs these objections would be discussed. In deciding not to attend the OPs the appellant chose not to make use of the opportunity to comment at the OPs on any of these objections but, instead, chose to rely on the arguments as set out in the statement of grounds of appeal, which the board duly considered below. The board also notes that the appellant did not request that the OPs be postponed. Nor did the appellant file a request for further OPs after being informed that the scheduled OPs were cancelled.

[1.5] Under these circumstances holding OPs was considered inappropriate. Hence, the board decided to cancel the OPs and, having considered the merits of the case, was in a position to reach a decision which complied with the requirements of A 113(1).

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

The file wrapper can be found here.