In this case the Board had to deal with a request for remittal to the first instance:
[2.1] According to Article 11 RPBA the board remits the case to the department of the first instance if fundamental deficiencies are apparent in first-instance proceedings. During the oral proceedings (OPs) before the board on 9 January 2013, and hence at a very late stage of the appeal proceedings, the representative of the appellant contended for the first time that its right to be heard had been violated by refusing its request to postpone the OPs of 26 September 2011 (Monday) before the Opposition Division (OD). The reason given for the postponement was a lecture to be given at a conference on 23/24 September 2011 in Carolina (US). As announced by fax dated 26 August 2011, the representative did not attend the OPs before the OD.
[2.2] When exercising its discretion in deciding whether or not to postpone OPs, the OD has to take into account the particular circumstances of the case. Given this discretion of the OD the principal task of the board of appeal is to consider whether the OD exercised its discretion in a reasonable way.
[2.3] In order to safeguard a party’s right to be heard pursuant to A 113(1) not only must the party be granted the procedural possibility of presenting comments but also the EPO has to take into due account the arguments and submissions of the party. These requirements were met by the procedure applied by the OD when dealing with the said request for postponement.
[2.4] With communication dated 27 May 2011 the OD replied to the request for postponement filed with the applicant’s fax of 4 May 2011, explaining that the request could not be granted because the fact that the representative was to speak at a conference did not fall under the exceptional reasons for which the change of date of OPs was allowed according to the case law of the boards of appeal. The OD quoted the pertinent pages of the 5th edition of the Case Law of the Boards of Appeal. It repeated its refusal of the request for postponement with communication of 8 September 2011, now referring to the current (6th) edition of the case law book, the appellant having complained that it had cited an old edition.
[2.5] In the decision under appeal the OD reiterated the objection made in its previous communications and summarised the issue of postponement, explaining why the reasoning of the appellant could not be followed. It held that the fact that the representative had to travel over the weekend in order to attend OPs scheduled for a Monday was not a sufficient reason to change the date of the OPs. Furthermore, it explained why decisions T 1102/03 and T 1505/06, cited by appellant, did not support the appellant’s request for postponement. In this context the OD pointed out that the journey to the US had not been firmly booked, as confirmed by the representative in the OPs before the present board on 9 January 2013, and that the conference took place three days before the OPs scheduled before the OD.
[2.6] Hence, the OD did indeed take into account the arguments of the appellant when it exercised its discretion and decided on the request for postponement. It follows from the foregoing that it did not refuse the request for postponement merely by citing as outdated edition of the Case Law book, as the appellant has alleged.
[2.7] Admittedly, the reasoning given by the OD for refusing the request is relatively brief and could indeed in some respects have been more detailed and comprehensive. However, the absence of possibly more detailed reasoning is certainly not a fundamental (emphasis by the board) deficiency requiring a remittal pursuant to Article 11 RPBA. Lastly, the reasons provided by the OD in its communications of 27 May 2011 and 8 September 2011 and in the decision under appeal are sufficiently clear and comprehensible to show that the arguments put forward by the appellant in support of its request had been taken into due account by the OD when exercising its discretion.
[2.8] The board points out that the reason given for postponement, namely a speech to be held by the representative at a conference, is actually clearly and unambiguously not a serious substantive reason for a postponement, as is clear from the case law of the boards of appeal. That case law is also reflected in the Guidelines for Examination (Part E-III 7, 2010 (sic)) and in the Notice from the EPO dated 18 December 2008 concerning OPs before the EPO (OJ EPO 2009, 68). The Guidelines are issued by the President of the EPO in accordance with Article 10(2)(a) EPC. Although the Guidelines are not legally binding, the examining staff may depart from them only in exceptional cases and, as a general rule, parties can expect the EPO to act in accordance with the Guidelines.
[2.9] It is correct that the list of serious reasons justifying a change of the date of OPs in the Guidelines is not exhaustive. However, these reasons clearly all involve special circumstances (e.g. pre-existing OPs, serious illness, or death within the family) or unavoidable commitments such as military service or other obligatory performance of civic duty. Business trips and holidays must have already been firmly booked in order to qualify as serious reasons for a postponement of OPs. It has been explicitly confirmed by the appellant’s representative that his trip to the US had not been firmly booked prior to the notification of the summons to OPs on 26 September 2011. Furthermore it is obvious that a speech at a conference is not one of the serious reasons listed in the notice of the EPO referred to in the Guidelines. Rather, in T 699/06  the board stated that such a commitment – to speak at a conference – was additional to the normal professional responsibilities of a representative. A representative who undertook such a commitment did so in the knowledge that this would make him unavailable to his clients, and unavailable to appear at any OPs, on the dates in question. Therefore, as a reason for changing the date of OPs, it was a reason which by definition resulted from excessive work pressure – excessive if only because it was a commitment which the representative was not obliged to undertake but which, having undertaken it, made him unavailable. Excessive work pressure was specifically mentioned in the notice from the EPO of 18 December 2008 as a non-acceptable reason (see paragraph 2.4 of the notice). With this legal situation in mind it is in principle irrelevant whether the representative had sufficient time to prepare and attend the OPs once the conference in the US was over.
[2.10] The decisions of the boards of appeal cited by the appellant during the opposition proceedings related to circumstances explicitly acknowledged as serious reasons for postponement of OPs, namely serious illness (T 1505/06) and pre-booked holidays (T 1102/03). These decisions therefore cannot support the present request for postponement.
[2.11] The appellant has failed to show – either in its written submissions or orally at the OPs before the board on 9 January 2013 – why its request for postponement might nevertheless qualify as a serious reason exceptionally allowing the requested change of date. It follows from the foregoing that its contention in the statement of grounds of appeal of 24 February 2012 that the decision regarding postponement had no basis in the EPC has to be considered as a mere allegation which lacks the necessary substantiation.
[2.12] In the statement of grounds of appeal the appellant further contends that the reasoning given in the decision under appeal, namely that having to travel at weekends could not be regarded as sufficient reason not to attend OPs, was not the reasoning of the appellant, since representatives could of course be expected to travel at weekends in order to attend OPs. Rather, the correct reasoning was that it was physically impossible to get from the conference in the US in time for the OPs in Munich given the time difference. Apart from that what has already been said above (point [2.9]), this submission, however, was put forwarded (sic) for the first time in the statement of grounds of appeal, whereas the letters of the appellant filed during the opposition proceedings are silent about it. So too are the minutes of the OPs before OD, due to the fact that the appellant did not attend them. Hence, this submission could not have been taken into account by the OD when taking its discretionary decision on the request for postponement and thus cannot be a basis for a contending that the division infringed the appellant’s right to be heard.
[2.13] In consequence, the decision of the OD not to postpone the OPs scheduled for 26 September 2011 is fully justified and based on a reasonable exercise of its discretion. In this context it has also be taken into account that the request of the appellant’s representative for postponement filed on 4 May 2011 was already its third request to change the date fixed for OPs, following two previous requests which had already been granted, the second of which was due to a lecture to be held by the appellant’s representative at a conference.
[2.14] The request for postponement having been properly refused and the appellant duly summoned by communication dated 18 April 2011 for OPs on 26 September 2011, the appellant had ample time to prepare for these OPs. As long as a request for postponement of OPs has not been granted, the requesting party cannot simply assume that it will be. The party has to consider the possibility of a refusal of the request and has to prepare the case accordingly to minimise the risk of time pressure (T 1102/03[3.2]). The right to be heard had thus been granted by the OD. By choosing not to attend OPs, as announced with letter dated 26 August 2011, the appellant deliberately did not avail himself of his right to be heard and must therefore bear any adverse consequences.
Hence, the request to remit the case to the first instance is to be refused.
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NB: This case has been commented on Le blog du droit européen des brevets (here).