Wednesday, 3 April 2013

T 228/09 – Abroad

This is another opposition appeal case where the Board of appeal refused to postpone oral proceedings (OPs).

*** Translation of the French original ***

[IV] By fax received on September 26, 2012, the professional representative of the appellant has requested the Board to postpone the OPs to be held on September 28, 2012, because he, the only European patent attorney of the law firm, had to travel abroad at the end of the day because of an unforeseen infringement case.

[V] The Board has not granted this request, for the following reasons:

Article 2 of the “Notice of the Vice-President of DG 3 of the EPO dated 16 July 2007 concerning OPs before the boards of appeal of the EPO” (OJ EPO, special edition 3/2007, 115) indicated that OPs appointed by the EPO will be cancelled and another date fixed only if the party concerned can advance serious reasons which justify the fixing of a new date. Such a request shall be accompanied by a sufficiently substantiated written statement indicating these reasons.

Article 2.2 gives examples of grounds which, as a rule, are not acceptable:
  • a summons to OPs before the EPO or a national court notified after the summons in the relevant proceedings,
  • excessive work pressure.
In the present case, the professional representative of the appellant […] has simply declared in his fax that an unforeseen infringement case required him to travel abroad at the end of the day and that he could not be in Munich on Friday morning. Moreover, being the sole European patent attorney of his law firm, he was unable to send somebody to replace him.

The fax dated September 26 does not give any detailed information on the circumstances of the case that obliged the professional representative to travel abroad, or on the travel itself. Thus the Board is not able to examine the seriousness of the reasons invoked. Moreover, in view of Article 2.2 of the Notice mentioned above, the Board is of the opinion that an unforeseen infringement case could not, as a rule, constitute a valid reason justifying a postponement. Finally, in the absence of explanations, the Boarder is surprised by the assertion that the professional representative is the sole European patent attorney of his law firm because the letterhead of the stationery of the law firm which has been used for the fax dated September 26 refers to “Professional representatives before the EPO”.

Thus the Board has informed the parties by means of a fax sent on September 27, 2012, that the request to postpone the OPs was dismissed and that the OPs were maintained on September 28, 2012.

[VI] Thus the OPs before the Board were held on September 28, 2012, in the absence of the appellant.

… and the appeal was dismissed.

Should you wish to download the whole decision (in French), just click here.

The file wrapper can be found here.