Friday, 29 June 2012

T 1721/07 – No Self-Service

The patent proprietors filed an appeal against the decision to revoke the patent under consideration.

The decision dated March 29, 2012, – wherein this appeal was dismissed – also contains an interesting paragraph on a request filed on May 4, 2012, concerning a correction of the minutes of the oral proceedings (OPs) before the Board. In particular, the patent proprietors requested:
  • that the sentence “[The chairman] presented the essential content of the file” be deleted because only the requests of the parties were presented, and not the essential content;
  • that a 30-lines passage – wherein the patent proprietor summarised the arguments of the parties and the conclusions of the Board – be inserted after the sentence “Then the parties were given the opportunity to speak”;
  • that the minutes mention that the patent proprietor had raised their objection – according to which the decision not to admit auxiliary requests 2 to 4 was a substantial procedural violation – before the announcement of the decision by the Board, and not afterwards;
  • that the sentences “When asked by the chairman, the parties declared that they did not wish to file further requests or statements” and “Then the chairman declared the factual discussion to be terminated”, because these events had not taken place ; the sentence “After deliberation of the Board, the following decision was announced” should also be amended to read “The Board then announced the following decision”.
  • that several grammatical errors be corrected.
As you might have guessed, the Board did not grant these requests:

*** Translation of the German original ***

[15] It follows from R 124, according to which minutes shall be drawn up and copies transmitted to the parties, as well as from Article 6(4) RPBA, according to which the minutes shall be drawn up by the Registrar or such other employee of the Office as the Chairman may designate, that the minutes of OPs (in appeal proceedings) are to be drawn up by the Board. This duty cannot be transferred or left, in whole or in part, to the parties or even only one of the parties.

This alone would be enough for dismissing the request of the [patent proprietors] to have the minutes of the OPs corrected along its proposition […]. However, the Board wishes to comment on the submission of the [patent proprietors] as follows:

[16] The sentence “He presented the essential content of the file” is a well-known standard formulation that is often used in minutes of OPs before Boards of appeal. To which extent the “content of the file” is actually presented at the beginning of the proceedings depends on the individual case. According to the established practice of the present Board the number of the appeal, the language of the proceedings, number and title of the patent, the impugned decision, the parties and their representatives as well as their requests are mentioned; this has also be done in the present case.

[17] Quite obviously – and understandably – the elements the [patent proprietors] wanted to have added [to the minutes] reflect their view of the OPs and summarise the arguments they consider to be relevant. However, as already mentioned, a party cannot be allowed to decide or have an influence on the contents of the minutes. In practice, a summary of the arguments made in the course of the OPs, as the one the [patent proprietors] wished to have included in the minutes of te OPs, is not, as a rule, given in the minutes but – although in somewhat different form – in the written decision, together with the written submissions. This has been done in the present case, too […].

[18] The third and fourth requests of the [patent proprietors] do not correspond to the recollections of the Board. The Board has noted the events in its minutes when they occurred (zeitgleich) and does not see any reason why it should correct the minutes at the request of one party, more than one month after the events, so that they reflect another sequence of events than when they were drafted.

[19] Although the correction of grammatical errors might not be disputed, the Board does not see any need for correcting minutes, provided that the errors do not result in making the minutes faulty; however, this appears not to be the case here.

To download the whole decision, click here.

The file wrapper can be found here.