Saturday, 25 August 2012

T 588/09 – That’s All Folks

The present decision deals with an appeal against the revocation of a patent by the Opposition Division (OD). In what follows, the Board made clear that the way in which the patent proprietors wanted the proceedings to be conducted was unacceptable:

[2.1] R 115(2) EPC and A 15(3) RPBA provide respectively that, if a party duly summoned to oral proceedings (OPs) before the EPO does not appear, the proceedings may continue without that party and that the Board shall not be obliged to delay any step in the proceedings, including its decision, by reason only of the absence at the OPs of any party duly summoned who then may be treated as relying only on its written case.

[2.2] In the present case the [patent proprietors] and the [opponent] had been duly summoned to OPs, which both of them had requested in their statement setting out the grounds of appeal and in the reply thereto respectively.

[2.3] The [opponent] informed the Board three weeks before the scheduled date that it would not attend the OPs. The [patent proprietors] communicated that they would not attend the OPs four days before the fixed date and accompanied that communication with the request to continue the proceedings in writing on the basis of two requests which had been filed ten days before. No reasons were given for justifying the late filing of the requests and the absence at the OPs. It was only invoked, when filing the new requests, that that filing was an earnest attempt to provide a set of claims which was novel and inventive and to avoid OPs.

[2.4] The procedural strategy of the [patent proprietors] to file new requests shortly prior to the OPs and then decide not to appear at the OPs asking for a continuation in writing cannot result in forcing the Board to follow the procedural steps imposed by the [patent proprietors] against the legal provisions cited above (point [2.1]) and commonly applied by the Boards of Appeal. This is all the more the case, since there is no justification for the behaviour of the [patent proprietors], as the legal and factual framework of the opposition did not change since the issuing of the decision of the OD […] and there was no apparent impediment for them to come to the OPs.

[2.5] It results therefrom, bearing in mind that there had been no changes in the legal and factual framework of the case which might justify the filing of new claims, that there was no reason to cancel the OPs requested by both parties and continue the proceedings in writing. Such a course of action under the present circumstances and in view of R 115(2) EPC and A 15(3) RPBA […] would go against the principle of procedural economy.

[2.6] The Board therefore refuses the request to continue the proceedings in writing and decides on the basis of the written submissions.

To download the whole decision, click here.

The file wrapper can be found here.