The Enlarged Board of Appeal (EBA) referral from T1807/15 concerns the legality of oral proceedings conducted via Video Conferencing (ViCo) without the consent of all parties (IPKat). There was some doubt as to whether the referral would actually go ahead, given that the party requesting the referral had already withdrawn their request. The Board of Appeal interlocutory decision in T1807/15 reveals that the Board of Appeal (3.05.02) has determined to continue with the referral. All eyes will now be on the EBA, and on whether they will accept the referral as admissible. In the meantime, until the issue of the legality of ViCo oral proceedings is clarified, parties anxiously waiting for their case to be heard by the Boards of Appeal could face further delays. The decision can be read here.
ViCo oral proceedings: Background
In the early stages of the coronavirus pandemic, the EPO cancelled all Board of Appeal hearings in view of the risk and difficulty of parties attending the EPO in-person. As it became apparent that the pandemic was unlikely to have a swift resolution, the EPO initiated, for the first time, Board of Appeal oral proceedings via video-conference (ViCo).
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| Attending oral proceedings |
However, far from presenting ViCo oral proceedings as an interim measure, the EPO has attempted to pave the way for ViCo hearings as the new standard, even once the pandemic is over. Towards this purpose, the EPO introduced new Article 15a of the Rule of Procedure of the Boards of Appeal (RPBA). Article 15a permits a Board of Appeal to hold oral proceedings by ViCo whenever "the Board considers it appropriate to do so", i.e. even without consent of the parties (IPKat: The inexorable rise of EPO oral proceedings by video conference).
The EPO's apparent attempt to steamroller the new provision through (with only a very short consultation period) raised some protest. It was therefore perhaps not a surprise when, last month, news broke of a referral to the EBA on the legality of mandatory oral proceedings by ViCo (IPKat). The referral stems from appeal T1807/15 of the opposition decision to maintain EP1609239 in amended form.
How did the referral come about?
Patentees generally have more to gain than Opponents from delaying a final decision on the substantive issues of a case before the EPO. It might therefore have been expected that a request for a referral on the issue of ViCo would come from a Patentee as opposed to an Opponent. Surprisingly, however, the party requesting the referral in this case was the Opponent. Although, admittedly, both the Opponent and Patentee had previously indicated that they did not think the case suitable for ViCo oral proceedings.
The Opponent requested the referral at the hearing on the grounds that mandatory ViCo oral proceedings violated their right to be heard. The Opponent also raised the general point of whether oral proceedings by ViCo was compatible with Article 116(1) EPC. The Opponent argued that "[t]he concept underlying Article 116(1) EPC was that the parties involved have the right to be physically present in a courtroom so that the Board members could get an immediate personal impression of the pleading parties". Furthermore, it was argued that changes to the RPBA could not be used to amend the EPC (i.e. Article 116(1) EPC), given that revision to the EPC should be via a Diplomatic Conference (in arguments very reminiscent of G 3/19 (Pepper), IPKat)
The Referral
For whatever reason, the Opponent's Representative subsequently withdrew their request for a referral to the EBA on the issue of ViCO oral proceeding "after speaking with their client". This left the IP community in suspense on whether the Board of Appeal would decide to continue with the referral.
With the release of the interlocutory decision in T1807/15, we now have confirmation that the Board of Appeal does intend to pursue the referral. The Board's grounds for referral presented in the decision were that "it appears self-evident that the point of law addressed in the question below is of fundamental importance for an indefinite number of cases". The Board of Appeal dealt with the withdrawal of the referral noting that a referral to the EBA does not necessarily depend on a party's request for that referral. Given that the Opponent had still not given their consent for oral proceedings by ViCo, the Board argued that the point of law remained as to whether oral proceedings conducted by ViCo without all parties' consent, were legal.
The Board of Appeal was also keen to stress in their decision that they did not wish to refer the question of whether ViCo oral proceedings per se were legal (i.e. including those conducted with the consent of the parties). The Board of Appeal noted that any party may choose to not even attend oral proceedings, which will then proceed in their absence. Given that ViCo oral proceedings could not be considered an option worse than non-attendance at a hearing, ViCo oral proceedings must be a legal option to give a party. The Board of Appeal thus restricted their referral to the question of whether ViCo oral proceedings, without the consent of all parties, are compatible with the EPC. The referred question is as follows:
"Is the conduct of oral proceedings in the form of a videoconference compatible with the right to oral proceedings as enshrined in Article 116(1) EPC if not all of the parties to the proceedings have given their consent to the conduct of oral proceedings in the form of a videoconference?"
The Board of Appeal also noted that it had already received third party observations (TPOs) regarding the appeal. The Board of Appeal dismissed these submissions on the grounds that they do not consider TPOs that do not relate to the question of patentability. We can however probably expect many Amicus Curiae submissions on the referral.
So will the EBA accept the referral? Currently, all bets are off. However, even if the EBA side steps the issue in the particular instance of T1807/15, it seems highly likely that the question would be referred in another case, either because of genuine concerns with the ViCo format or as a strategy to delay a final decision on a patent. Finally, it seems to this Kat that the EPO has an interest in settling this matter as soon as possible, if they are to avoid the backlog of Board of Appeal cases growing even further. We can therefore predict a relatively speedy decision from the EBA.
In the meantime, stay tuned to IPKat for further developments!
Update, 18 March 2021: The EBA has set a date of 28 May 2021 for oral proceedings (by ViCo) for the referral G1/21. The deadline for parties to submit observations is 27 April 2021.
Reviewed by Rose Hughes
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Tuesday, March 16, 2021
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Posts
Serious questions arise in connection with "The EPO's apparent attempt to steamroller the new provision through (with only a very short consultation period)".
ReplyDeleteThe first, and most obvious, is the issue of whether those members of the EBA that were involved in crafting and/or advancing Art 15a RPBA will self-recuse. If they do not, then how will the public know which EBA members (other than the President of the Boards of Appeal, whose involvement in Art 15a RPBA is well known) might not, according to the objective standard, be impartial with regard to the question referred?
The second question is why has the EPO still not provided any indication of the CONTENT of the various submissions to the EPO in connection with the consultation on Art 15a RPBA? We also still do not have any commentary from the EPO on why they chose to act (or not to act) on legal issues raised in the not-so-supportive submissions, several of which have been published by their authors. If the EPO does not intend to publish any such information and commentary, then it is hard to discern a legitimate purpose for conducting the consultation in the first place.
Should the President of the BoA self-recuse: Who selects the actual members of the EBoA handling the referral?
ReplyDeleteThe business distribution scheme seems to be "flexible enough" to select the actual members according to the desired outcome of the referral...
Are you referring to Art 2(2) RPEBA ("The Chairman of the Enlarged Board of Appeal shall determine the composition of the Board for each particular case in accordance with the business distribution scheme")?
DeleteIf so, then it seems that there is a lacuna in the RPEBA. That is, there appears to be no indication as to how Art 2(2) RPEBA should be interpreted in the situation where the President of the BoA is obliged (under Art 24(1) or (2) EPC) to recuse himself or herself from the proceedings.
This is a bit concerning, because determining the composition of the EBA would most definitely be "taking part in the proceedings" ... and so would be contrary to Art 24 EPC if it were to happen. It will therefore be VERY interesting to see whether the EPO provides complete transparency on how they decide to handle this point.
Of course, it is important to note that objections under Art 24(3) EPC is also available to the parties in this case.
The composition of the EBA will indeed be interesting. One thing is clear: the members of the BA having contributed to the creation of Art 15aRPBA2020 are known and some leaks can be expected.
ReplyDeleteOP as ViCos are, as such, not the problem, but there is a great difference between giving OP as ViCos a mandatory character or not.
The bravery of this BA is to be commended. I am curious to see whether its members will be renewed at the end of their contract. This referral is necessary because the trend uncovered by the EPO, supported by some BA members, is to ignore the will of the parties. The savings in building space must not be achieved at the expense of the users.
It is paradoxical that an applicant or proprietor has a say in the form in which a patent is granted and maintained, but no say in the form of the right to be heard. Seeing one's opponents and the decision-making body in postage stamp format is not to everyone's taste. I can understand them.
Claiming that OPs as ViCos are equivalent to real OPs is comparable to the EPO's claim that the new EQE format has proved to work very smoothly.
If the parties agree, there is nothing to prevent OPs as ViCo, but please let the parties decide. However, at least the members of the decision-making body must sit together in the same place. See page 25 of the decision. One can try to squeeze out a lot from Art 116, but certainly not that scattering members of EPO deciding bodies around Europe corresponds to the letter or the spirit of the EPC.
Introducing mandatory OPs as ViCo is a fundamental change in the mechanisms of the EPC. Neither the head of the EPO or of the BA have the power or legitimacy to introduce such a drastic change. It is to the member states in form of a diplomatic conference to decide such a change.
When it was decided to bring search and examination together it was a diplomatic conference which took a decision which was later ratified by all contracting states.
Where is it seen that an executive body decides on the interpretation of legal texts? Certainly not in Western Europe.
Btw, why should third parties observations be limited to substantial patent law? Where is the legal basis for this stance?
"Btw, why should third parties observations be limited to substantial patent law? Where is the legal basis for this stance?"
DeleteArticle 115 EPC:
In proceedings before the European Patent Office [...] any third party may [...] present observations concerning the patentability of the invention to which the application or patent relates. [...]"
The referring Board must be commended for doing the right thing, i.e. referring the matter to the Enlarged Board rather than sweeping the dust under the rug. The question had to be settled someday: the earlier, the better.
ReplyDeleteIn my view, the referring Board also made the right call when it restricted its referral to the situation where the parties did not agree to oral proceedings via ViCo. If they requested a ViCo or agreed to it, they have effectively waived their right to being heard in person.
How the Enlarged Board will settle the question will be interesting indeed. I, for one, hope that the answer will be that it is not up to the President of the EPO, or to the Administrative Council, or to whoever they might appoint to implement such a sweeping change of the EPC - but that it is instead up to the legislator, i.e. the EPC contracting states. The notion of hierarchy of legal norms, and ultimately separation of powers itself, has no operative effect at all if the interpretation of an article of the EPC can be changed merely by enacting a lower-ranking rule.
epi has already raised the issue of composition of the Enlarged Board of Appeal in this case with the President of the Boards of Appeal / Chairman of the EBoA; see https://tinyurl.com/yzgkfhvv
ReplyDeleteIt is reassuring to know that epi is monitoring this situation very closely. The letter to the President of the BoA should serve as notice of an "other reason" in the sense of Art 24(2) EPC as to why certain BoA members should not form part of the EBA for this referral.
DeleteIt remains to be seen how much importance the President of the BoA places upon the requirement for justice to be SEEN to be done ... by ensuring that no observers could possibly point to objective reasons to doubt the impartiality of the members of the EBA.
It also remains to be seen whether the President of the EPO will impose an ex officio stay of proceedings for all cases where one or more parties has not provided their consent for scheduled oral proceedings to take place by VICO.
There are compelling reasons why the EPO President should impose a stay of proceedings. That is, as explained by the Board in T1807/15, "Conducting oral proceedings in a legally incorrect format would amount to a substantial procedural deficiency which could affect the validity of the final decision". However, a similar argument could have been made in connection with the referral in G2/19. Curiously, the EPO President decided not to impose a stay in connection with that case. By way of contrast, he proved somewhat over-eager to impose stays of proceedings in connection with the interpretation of Art 53(b) EPC (including a stay imposed in November 2016 which, in the light of the decision in G3/19, can now be seen to have had precisely ZERO legal basis under the EPC).
This all raises a question that is perhaps for another day, namely for how long will users tolerate a system in which the power of the EPO President to decide whether to impose a stay of proceedings is not subject to any meaningful legal constraints? This is no laughing matter for those summoned to VICO oral proceedings for which not all parties have provided their consent. There is a chance that the EBA's ruling might render effectively null and void the ED, OD or Board of Appeal decision in those VICO proceedings. However, despite the EPO committing a substantial procedural violation, the parties will not be able to recover their costs for participating in the VICO proceedings ... at least not unless they are prepared to risk seeking recompense in proceedings before a national court under Art 9(2) EPC.
Proof of the pudding, I do not see any legal basis allowing the President of the EPO to impose a stay. In my opinion, already the former decisions of the President of the EPO in this respect have been ultra vires. Unfortunately, said topic has never been discussed by the EBoA.
DeleteMoreover, the decision of President of the EPO prohibiting the first instance divisions to render an interlocutory, separately appealable decision on the legality of imposed OPs by ViCo is also lacking any legal basis in my view.
Well, it seems that even compelling reasons were not enough to persuade the EPO President to impose a stay of proceedings in cases affected by G 1/21:
Deletehttps://www.epo.org/law-practice/legal-texts/official-journal/information-epo/archive/20210324.html
The AC also did not hesitate to approve the provision whose lawfulness is in doubt, namely Art 15a RPBA:
https://www.epo.org/law-practice/legal-texts/official-journal/ac-decisions/archive/20210323.html
These developments swiftly follow potentially crucial decisions taken in connection with G1/21 by a Chairman of the EBA who has a personal interest (namely, avoidance of professional embarrassment) in upholding the validity of Art 15a RPBA.
Against this background, how can we possibly have confidence that the EBA will handle G1/21 in a truly impartial manner?
Indeed, who will take bets that the opinion in G1/21 will be issued by the EBA in an unchanged composition?
https://patentepi.org/assets/uploads/documents/epi-reports/210315%20Proposed%20Referral%20to%20the%20Enlarged%20Board%20of%20Appeal%20regarding%20oral%20proceedings%20by%20videoconference%20%E2%80%93%20Letter%20to%20the%20Chairman.pdf
ReplyDeleteIt will be interesting to see how the EBA will deal with the interevention of epi.
DeleteThe question how to deal with objections of suspected partiality raised by third parties has already been settled by the EBA. Pursuant to Article 3(1) of the Rules of Procedure of the EBA, a decision on suspected partiality has to be taken without the members concerned participitating pursuant to Article 24(4) EPC, if the EBA has knowledge of a possible reason for objection which does not originate from a member himself or from any party. Under this provision the submissions of a third party with respect to a member of the Enlarged Board to be suspected of partiality under Article 24(3) EPC are taken as information on the basis of which the Board can ex officio look at the alleged grounds of suspicion of partiality (G 3/08, interlocutory decision of October 16, 2009, see also R 19/12). It may be that replacing the members concerned gives the participating external members a better chance to insist on observing established principles of the rule of law.
Merely taking a decision on exclusion and objection will no longer be enough to remove the taint of partiality from the EBA's handling of G 1/21.
DeleteThe Chairman announce for G 1/21, a Mr Josefsson, very clearly has a "personal interest" in the question of whether or not new Art 15a RPBA conflicts with the correct interpretation of Art 116 EPC. This is because, as one of the principal architects / supporters of new Art 15a RPBA, he would be professionally embarrassed if the EBA's answer to the question referred is "no".
Art 24(1) EPC is very clear in stating that "Members of the Boards of Appeal or of the Enlarged Board of Appeal may not take part in a case in which they have any personal interest". But Mr Josefsson has ALREADY taken part in G 1/21, by taking two very important decisions, relating to the composition of the EBA and the appointment (including timing and manner) of oral proceedings.
Thus, there is a very strong argument that the actions taken by Mr Josefsson in connection with G 1/21 are already inconsistent with the EPC (ie unlawful). If one or more of the parties objects to conducting oral proceedings by VICO, then things could get a whole lot messier.
It appears that oral proceedings before the EBA have already been summoned (end of May, by ViCo!) for the case; it also appears that the EBA will include members who drafted the proposal to introduce new article 15a.
ReplyDeleteWelcome to the (new) EPO. May the Rule of Law rest in peace.
Are you being serious? Please tell me that this is some kind of sick joke. I had seen the recent change regarding a date of oral proceedings but had never contemplated that it would relate to proceedings before the EBA.
DeleteIf true, then this development would be just like crime in a multi-storey car park ... just wrong on so many levels.
Firstly, the referral is not even listed on the EPO web site. Can the patent profession really be expected to put together amicus briefs in the extremely short time that would be available between publication of details of the case (presumably by end of March) and a date sufficiently in advance of the oral proceedings to permit detailed consideration of those briefs? This would compare unfavourably even to the obviously sham consultation on Art 15a RPBA!
Secondly, unless the parties to the proceedings all agree to the VICO format, how can OPs before the EBA possibly be conducted by VICOs without (at the very least) giving the impression of the EBA having already reached a decision on the answer to the question referred?
Thirdly, the inclusion of members that drafted the proposal for Art 15a RPBA would, if true, be completely beyond the pale. The inclusion of such members would kill off any prospect of even the APPEARANCE of impartiality.
Can you share details with us? The Register is still silent, and so is the oral proceedings calendar and the EBoA websection.
DeleteThe summons is now on the register.
DeleteIt seems to me that this referral raises fundamental questions of that thing called "natural justice" which we instinctively honour. No man shall be judge in his own cause. Justice must not only be done but must be seen to be done.
ReplyDeleteIs it that EPO executives, managers and, indeed, and governors are all unfamiliar with such concepts?
Or is it that they do grasp them, at an instinctive level, but have meanwhile become inured to ignoring them?
I am sorry, but I can't share more details; the source is extremely reliable: you'll see that this is no joke, unfortunately. I could myself not believe it, when I was told, but I am not surprised.
ReplyDeleteIt is in the register now, confirming everything announced by the Anonymous commenter above. https://register.epo.org/application?number=EP04758381&tab=doclist
ReplyDeleteAccording to documents now on the Register, the hearing is set for 28 May 2021. The composition of the EBA shall be:
ReplyDeleteC. Josefsson
I. Beckedorf
W. van der Eijk (rapporteur)
R. Arnold (external member) (i.e. Lord Justice Arnold)
E. Chatzikos (external member)
G. Eliasson
A. Ritza
Do we know which of these were involved in drafting the new RPBA?
The composition of the Board not only includes the members responsible for drafting and proposing Art. 15a RPBA, having publicly taken and defended the position that VICOs appointed ex officio are allowed under Art. 116 EPC and that Art. 15a of the revised Rules of Procedure (not yet entered into force) merely clarifies an existing possibility (see Notice from the Boards of December 15, 2020).
ReplyDeleteTo complete the picture, parties have been summoned to oral procceedings to take place on May 28, 2021 to be heald as VICO. Instead of asking the parties whether they agree with a VICO, they are invited to inform the EBA whether they consider oral proceedings before the EBA not to be expedient and/or envisage not to attend oral proceedings, in which case a decision could be promptly issued, apparently in written proceedings.
Honi soit qui mal y pense.
I agree with Anon: RIP Rule of Law at the EPO. This is an outrage.
ReplyDeleteIf (ha, ha!) the EBA were to come to the decision that oral proceedings via ViCo without the agreement of the parties were not compatible with the EPC, then the decision of the EBA would also not be compatible and therefore of no legal effect. How do they propose to solve that conundrum, other than ruling that such a ViCo is compatible?
ReplyDeleteAlso, what is with the "bare minimum" two months and 10 days notice for oral proceedings? Hopefully, the regitered post to the UK will take a bit longer than 10 days to be delivered.
At the meeting where the BOAC "consulted" with users on the new Art 15A, the BOAC was strongly urged to amend the text of the article to make enforced attendance via VICO a purely temporary provision during the pandemic. These submissions were completely ignored on the basis (according to the notice published on 15 December 2020) that new Art 15A "merely clarifies an existing possibility" and thus is already compliant with the EPC. Present on behalf of the Boards at that meeting were the following members of the panel selected for hearing this appeal:
ReplyDeleteC. Josefsson
I. Beckedorf
G. Eliasson
A. Ritzka
So that's a majority of the panel who have the appearance of partiality. Josefsson chairing the panel is beyond a joke.
I can only agree with you...
DeleteIt would be interesting if Mr. Arnold and/or Mr. Chatzikos were to refuse to take part in what, on the face of it, is a kangaroo court.
ReplyDelete"Where a regular member has participated in a case referred to the Enlarged Board of Appeal or in a decision which is the subject of a referral of the President of the European Patent Office, the Chairman shall, after consulting the regular members (paragraph 1(a)), appoint as substitute a member from amongst the alternates (paragraph 1(b)) or an external legally qualified member in accordance with paragraph 5. The same applies if a regular member is prevented from participating."
ReplyDeleteSee: https://www.epo.org/law-practice/legal-texts/official-journal/2021/etc/se1/p3.html
Arguably, none of the four should be appointed to the panel as they were involved in a matter which has led to the referral. Note the German text, "Hat ein ständiges Mitglied in einem Verfahren, das zur Vorlage an die Große Beschwerdekammer geführt hat".
The members in question participated in a decision which is the subject of a case referred to the Enlarged Board of Appeal: does Art. 2(3) apply anyway?
ReplyDeleteI think that you mean Art 3(3) RPEBA. And yes, it should apply here.
DeleteThen again, the letter of the epi really ought to have led to Art 4 RPEBA being invoked:
(1) If the Board has knowledge of a possible reason for exclusion or objection which does not originate from a member himself or from any party to the proceedings, then the procedure of Article 24, paragraph 4, EPC shall be applied.
(2) The member concerned shall be invited to present his comments as to whether there is a reason for exclusion.
(3) Before a decision is taken on the exclusion of the member, THERE SHALL BE NO FURTHER PROCEEDINGS IN THE CASE.
No, I meant Art. 2(3) of the EBA Business Scheme mentioned by Kant:
DeleteWhere a regular member has participated in a case referred to the Enlarged Board of Appeal or in a decision which is the subject of a referral of the President of the European Patent Office, the Chairman shall...
It seems to me that this article does not apply, since the two conditions to exclude members are not met in this case.
I.B. drafted the text accompanying the proposal for new art. 15a RPBA, but this something only the aficionados within the Boards know: there's nothing in the public records and it will be difficult to request that he be recused. But at least he is not the rapporteur.
ReplyDeleteDoes anybody know what happend in the oral proceedings per ViCo in R7/19 (https://register.epo.org/application?number=EP02710558&lng=en&tab=doclist)?
ReplyDeleteThe EPO is more and more developing into a banana republic with the help of the EBA.
ReplyDeleteIt is tragic.
I only think that appealing to national authorities can put a stop to this dangerous way.
After all the EPO is not there to serve the top management and the minions gravitating around it, but to the users of the EPO.
The criticisms of the composition of the EBA panel seem unjustified. The initial composition seems to be as foreseen in the business distribution scheme for the EBA. Of course, and in view of epi's comments, it will have to be decided whether any of those members should be replaced.
ReplyDelete2) However, in view of epi's comments, he should have refrained
Deletea) to decide on the rapporteur,
b) to decide on the date of the oral proceedings leaving barely enough time for Amicus Curiae briefs,
c) to decide on the form of the oral proceedings (by ViDo),
d) to indicate that a decision may be rendered without oral proceedings.
Are you serious? Hard to believe!
DeleteBeside the rapporteur and the two external members, all the other designated members in G 1/21 were present when the BOAC "consulted" with users on the new Art 15A.
Difficult to be more prejudiced.
In view of this amazing situation any composition according to the distribution scheme for the EBA is not worth the paper it is written on!
All those persons should have the decency to deport themselves.
But the perception of the independence of the BA has increased since 2016 and the adoption of R 12a-d.
It seems to be that the EBA has already acted in its current dubious composition. It has decided to summons by videoconference with a very tight deadline. These are actions that are quite significant given the subject of the referral. So I think that the criticism is fully justified.
DeleteI think that it is fair to criticise a composition that is unlawful (as per Art 24(1) EPC), especially when an individual who clearly has a personal interest in the question referred takes a number of important decisions in the case, contrary to Art 4(3) RPEBA.
DeleteHowever, it is nice to know that senior management of the EPO is monitoring this thread!
In my opinion, two important pieces of information worth reading:
ReplyDelete1) Read the editorial of epi-information 1/2021
Subtitle: "The manants rebel".
While epi had officially said very little when the BA were "reformed" and banished to the outskirts of Munich, for once it is speaking out.
Bravo, keep up the fight, it's only a start!
2) EPO launches an investigation into what it would like to see established as "New Normal”
https://www.epo.org/news-events/news/2021/20210319_fr.html
New normal = maximum digitisation and more or less complete dematerialisation of the office, with agents spread throughout Europe and mixed Hague-Munich divisions. Maximum 50% of agents on site.
I find the amazing the nerve put to light by the upper management. When it came to deciding that OP in the form of ViCo are compulsory, users were not asked for their opinion.
Now that the office is to be completely dematerialised, he is asking users for their opinion.
When you know what the office does with the responses to "consultations", it is difficult to do better in terms of mocking the world.
The aim is clearly to save 50% of the buildings. It had actually started with the sale of part of the BT 8, but the city of Munich did not go for it.
Before reselling buildings in the city centre of Munich, it would be necessary to repatriate the BA from the outskirts.
The legal basis for all this: nope!
The aim is see trough, being able to tell the AC that the users approve. Not with me!
I am torn between telling the pseudo-managers of the office what I think of them and boycotting the survey!
Perhaps the thinking is, at the level of the EPO President and the members of the EPO Administrative Council, that cases at the EPO are not as important as those in "real" courts that concern personal liberty /jail sentences) and universal human rights, and therefore a ViCo is proportionate and "good enough".
ReplyDeleteThat's because they always concern just one patent, usually one within a huge portfolio, and only the issue whether that one patent survives or not. Patents are restraints on free trade so the fewer of them the better, eh?
Only a matter of money. Therefore, shoulder shrug and the thought: So What?
A question. The deemed date of receipt of the summons is Saturday 27th March. Does the two month period under Rule 115 EPC start on the 27th or the 29th March?
ReplyDeleteRule 134 EPC applies only to periods expiring on days on which one of the filing offices of the EPO is not open for receipt of documents. There does not seem to be any rule stating that deemed notification is extended if it falls on a day where an attorney office is not open for receipt of documents. (Unless it can be demonstrated that receipt occurred later, see Rule 126 EPC)
DeleteI think you might be confusing extension of periods when they end on days the EPO is not open for business (Rule 134) and the ten-day rule concerning deemed notification of letters (Rule 126). There is, to my knowledge, no extension when the ten-days end on a day a patent attorney firm is not open for receipt of letters.
DeleteKant, I congratulate you, for prompting me to laugh out loud. It makes a break from crying.
ReplyDeleteAs to your point though: is it not totally futile to make the point that the out of EBA might have failed to provide the mandatory 2 month period? Think about it: even if you want to challenge the legality of the EBA-appointed date of 28 May 2021, who will decide whether your challenge to the legality of the date has any merit?
Yet another foregone conclusion, to add to all the others?
Third party observations raising an objection under Article 24 EPC have been filed:
ReplyDeletehttps://register.epo.org/application?documentId=E50SRQAL7015DSU&number=EP04758381&lng=en&npl=false
Third party observations have been filed raising objections under Article 24 EPC, as many here predicted.
ReplyDeletehttps://www.epo.org/law-practice/case-law-appeals/recent/t162320eu1.html
ReplyDelete"1.5.2 Article 116 EPC states that "[o]ral proceedings shall take place ...". It does not define in any way the exact form of those proceedings, other than the proceedings being oral in nature. In particular, it does not explicitly exclude oral proceedings by videoconference.
In the board's view, a prerequisite of oral proceedings is that the parties can see the members of the board and vice versa. This distinguishes oral proceedings pursuant to Article 116 EPC from a telephone conference in which the board members and parties are not visible to each other."
I don't understand why Art. 116 doesn't exclude ViCo whilst simultaneously excluding telephone conference. Art. 116 doesn't exclude parties not being able to see one another. While we are at it, Art. 116 doesn't exclude oral proceedings via interpretive dance either.
I don't understand from where the Board has drawn the notion that "a prerequisite of oral proceedings is that the parties can see the members of the board and vice versa". Why is sight necessary? Elsewhere it is argued that a crucial aspect of oral proceedings is that they allow an essentially simultaneous exchange of views, unlike written correspondence. With that, I agree. But telephone conference would also allow a simultaneous exchange of views. Why is visual communication necessary?
DeleteThe internal logic of the decision is completely non-existent.
Facing oral opposition proceedings in April, held as a videoconference without the parties´ consent, I wonder if it is possible to request a postponement of said Oral Proceedings.
ReplyDeleteSee the EPO Register for new third-party observations raising objections of partiality. (I have tried to post this twice before but it has apparently vanished into the ether!!!)
ReplyDeleteI saw the EPO has tweeted about a new BoA decision on T2320/16, saying “Technical Board of Appeal confirms that oral proceedings by videoconference are consistent with Art 116 EPC, in the interests of legal certainty. Read their decision https://www.epo.org/law-practice/case-law-appeals/recent/t162320eu1.html “
ReplyDelete'confirms' is interesting choice of words given the fact there's a pending EBA referral on the topic.
Link to tweet: https://twitter.com/EPOorg/status/1374643941270810625
Is the behaviour of the European Patent Office, in particular the Boards of Appeal of the European Patent Office, in line with the “Rules and Principles of Law”?
ReplyDeleteDoubts do not seem to be misplaced!
What prompts this question and doubts?
At the beginning of the Corona pandemic in the spring of 2020, both the Opposition Divisions and the Boards of Appeal of the European Patent Office, each of which considering themselves to be independent adjudicating arms associated with the European Patent Office, cancelled all oral proceedings, held in accordance with Art. 116 EPC (European Patent Convention), in order to avoid any risks of Corona infection for all parties in attendance.
The President of the European Patent Office recently issued the following communication for both the Examining and Opposition Divisions:
"In view of the ongoing disruptions caused by the spread of coronavirus (COVID-19), the European Patent Office (EPO) has decided, with effect from 4 January 2021, to hold oral proceedings in opposition by VICO in accordance with Article 2 of the Decision of the President of the European Patent Office dated 10 November 2020 concerning the modification and extension of the pilot project for oral proceedings by VICO before opposition divisions. Where there are serious reasons preventing the use of VICO in opposition, oral proceedings will be postponed until after 15 September 2021.Therefore the European Patent Office announced on November 10, 2020:
1. That the postponement of in-person opposition hearings (currently until 31 December 2020) be further extended to 15 September 2021 along with extension of the pilot project to the same date;
2. That the consent of all parties for holding an opposition by VICO will no longer be necessary with effect from 4 January 2021, for the duration of the pilot project.”
This regulation is generally to be understood as applying only for the period of the pandemic: currently until 21 September 2021. There is clear logic to this decision: all parties understand the need for caution and all users can readily accept such an interim measure.
It is, at the very least for ethical reasons, incomprehensible that the emergency situation surrounding VICO oral proceedings triggered by the pandemic, should now be exploited to promote a final abandonment of “classical” (in person) oral proceedings as guaranteed by Art. 116 EPC. Of particular concern is the loss of “classical” oral proceedings before the Boards of Appeal of the European Patent Office: such proceedings being the last instance to have a case heard before the European Patent Office. It is to be understood that the oral proceedings guaranteed by Art. 116 EPC are a fundamental right to all interested parties.
Direction is made to the new Art 15a of the Rules of Procedure of the Boards of Appeal (RPBA), as proposed by the President of the Boards of Appeal. The new RPBA will be applied irrespective of the COVID pandemic and, at the very least, result in a significant curtailing of a party’s right to present arguments in person before the Boards of Appeal and may even, ultimately, lead to the abolishment of oral proceedings in the classical sense altogether:
Proposed text
Article 15a
Oral proceedings by videoconference
(1) The Board may decide to hold oral proceedings pursuant to Article 116 EPC by videconference if the Board considers it appropriate to do so, eitherupon request by a party or of its own motion.
(2) Where oral proceedings are scheduled to be held in person, the Chair may allow a party, representative or accompanying person to attend by videoconference. In exceptional circumstances, the Chair may decide that a party, representative or accompanying person shall attend by videoconference.
(3) The Chair may allow any member of the Board in the particular appeal to participate by videoconference.
See:
http://documents.epo.org/projects/babylon/eponet.nsf/0/26FC88F4EBB475FEC125861F002F09E7/$File/user_consultation_art_15a_RPBA_en.pdf
tbc ...
Continued:
DeleteIn addition to the President of the Boards of Appeal, namely Mr C. Josefsson, further members of the Boards of Appeal participated in the formulation of the new Art. 15a RPBA,; the panel of Board of Appeal members included the following three members:
T. Beckedorf
G. Eliasson
A. Ritzka.
Reference is made to: https://ipkitten.blogspot.com/2021/03/board-of-appeal-in-t180715-continues.html
It would seem that the new regulation, granting sweeping powers to the Boards of Appeal to curtail a party’s rights of in person advocacy, is evidently not lawful. This is to be understood from the decision of one of the Boards of Appeal themselves, in case T 1807/15: on 15 March 2021, the Board of Appeal in question elected to test the legality of the new RPBA and have this reviewed by the Enlarged Board of Appeal, this being the highest instance at the European Patent office.
Attention is directed to: https://assets.documentcloud.org/documents/20513464/t1807-15.pdf
The question which has been referred to the Enlarged Board of Appeal is:
Is the conduct of oral proceedings in the form of a videoconference compatible with the right to oral proceedings as ebshrined in Article 116(1) EPC if not all of the parties to the proceedings have given their consent to the conduct of oral proceedings in the form of a videoconference?
This question is to be discussed and subsequently decided on 28 May 2021:
https://register.epo.org/application?documentId=E5Z25KDG3310DSU&number=EP04758381&lng=en&npl=false.
The Enlarged Board of Appeal is composed of the following members:
C. Josefsson (=President of the Boards of Appeal and Chairman in the present case)
I. Beckedorf
W. van der Eijk (rapporteur)
R. Arnold (external member) (i.e. Lord Justice Arnold)
E. Chatzikos (external member)
G. Eliasson
A. Ritza.
See:
https://register.epo.org/application?documentId=E5Z24IMQ6217DSU&number=EP04758381&lng=en&npl=false.
The concerns being raised and expressed here are not related to the legality of the newly proposed Art. 15a of the RPBA, but about the very strange fact that the panel of the Enlarged Board of Appeal is composed of a majority of members who themselves proposed and sanctioned the new Art. 15a of the RPBA. In addition to the President of the Boards of Appeal, who is also acting as the Chairman of the Enlarged Board in this case, the Enlarged Board also includes the three members mentioned above:
T. Beckedorf
G. Eliasson
A. Ritzka,
One can only assume, given their roles in drafting and implementing the new Art. 15a RPBA, that they do not represent unbiased members of the Enlarged Board of Appeal. With this constellation, serious questions must be raised as to the likely impartiality of the members tasked with making this determination of the law.
Just imagine, by way of comparison:
• Four Federal Constitutional Court judges (including the President of the Federal Constitutional Court) write a draft bill, e.g. concerning a change of the rules on oral proceedings in the Federal Constitutional Court Act (cf. § 25 BVerfGG).
• The Bundestag or Parliament, respectively, passes a corresponding law in accordance with the draft bill.
• A constitutional complaint is lodged against this and the four constitutional judges who wrote/supported the bill - and another three constitutional judges - then decide on its legality.
Such legal proceedings would, quite rightly, lead to public outcry. Such a “review” procedure cannot possibly be considered as being in line with the general principles and rule of law.
tbc....
Continued:
DeleteThis latest episode shows that it is high time that far reaching decisions made by the European Patent Office, in particular those from its Boards of Appeal, are open to proper review and scrutiny by a truly independent European Patent Court. Such a court would need to enforce the legal practices of national courts and/or the European Court of Justice – legal frameworks which have arisen from interaction with end users, qualified judges and the actual laws of the member states, rather than being arbitrarily forced upon users by a disconnected and unaccountable body, i.e. the European Patent Office itself.
Only in this way, that is the installation of a fully independent legal review mechanism, would decisions by one court be considered constitutional according to German law; in Germany, this practice ultimately led to the establishment of the Federal Patent Court in Germany.
It should also not be overlooked that all European states provide for the possibility of video conferences as a substitute for oral proceedings in the classical sense, but always under the prerequisite of full consent of the parties or at the request of the parties. In Germany, this is regulated by § 128 a ZPO:
§ 128a - Hearing by means of video and audio transmission
(1)The court may, on application or ex officio, permit the parties, their agents and advisers to be present at another place during oral proceedings and to perform procedural acts there. The proceedings shall be transmitted simultaneously in sound and vision to that place and to the courtroom.
(2) The court may, on application, permit a witness, expert or party to be present at another place during a hearing. The hearing shall be transmitted simultaneously in sound and vision to that location and to the courtroom. If parties, authorized representatives and assistants have been permitted to be at another location in accordance with subsection 1 sentence 1, the hearing shall also be transmitted to that location.
(3) The transmission shall not be recorded. Decisions under subsection (1) sentence 1 and subsection (2) sentence 1 shall be final.
Corresponding regulations exist in other European states, in particular member states of the European Union. In this regard, reference is made to: Tilman Pfrang "Legality of Virtual Oral Proceedings under Art. 116 EPC" which can be found here:
https://www.meissnerbolte.de/de/news/legality-of-virtual-oral-proceedings-under-art-116-epc/
Sincerely,
Dr. Eugen Popp, LL.M.
Kay Rupprecht, LL.M.
Jochen Kilchert
Dr. Andrew J. Parker, LL.M
Dear Kant,
ReplyDeleteI think you might be conflating the extension of periods when they end on a day the office is not open for receipt of documents (Rule 134) and the ten-day notification fiction of Rule 126. There is no rule - at least not to my knowledge - that the ten-day fiction is extended if it ends on days an attorney firm is not open for receipt of documents.
Anonymouse, nothing is being conflated. The summons is deemed by a legal fiction to arrive on a Saturday. The representative can be assumed to read the summons on the Monday, at which point she is notofied of the summons. Rule 115 requires "at least two months' notice" to be given. If the representative is only aware of the contents on the Monday, the two months' notice has not been provided.
DeleteCompare this with somethoing like giving notice of terminating a contract. If the contract says (say for discussion purposes) three days' notice, if the termination is delivered on a Saturday, a court is unlikely to hold that due notice has been given for a termination on the Tuesday.
Dear Kant,
DeleteRule 126 EPC does not contain any passage concerning the question of when an attorney can be assumed to have read the mail and no reference to national courts of contract law.
According to Rule 126 if the attorney can prove that the mail arrived later than the ten days, then that will be the date of notification.
So quite clearly, the answer to your question is: If the mail arrives later than the 27th, then the actual date of receipt will start the two-month period. But the two-month period of Rule 115 EPC quite clearly does not start on the 29th simply because the 27th is a Saturday. It is safe to assume that the Eboa has not made a mistake here.
Has anyone noticed that the register
ReplyDeletehttps://register.epo.org/application?number=EP04758381&lng=en&tab=main
indicates that oral proceedings have already been scheduled March 16, 2021, i.e. even before the issuance of the written decision by the BoA?
A good point. It is evident that oral proceedings before the EBA have been appointed on the earliest possible date, with the Summons being sent on the same day as the BoA's decision was published and with the notice period for the OPs being not a day longer than the statutory minimum. We can certainly expect the EBA to issue its opinion in record time. Indeed, it seems quite likely that the opinion is largely already written!
DeleteMaybe for the first time ever, not only will the oral decision be announced in the hearing but also the written decision will be handed down.
DeleteBecause that would in no way make it absolutely clear that the opinion of the EBA was prepared in advance of the OPs! Having said that, recent development strongly suggest that the EBA cannot be bothered to make even a token attempt at the appearance of impartiality in connection with G1/21. I would therefore not rule out the publication of the EBA's opinion on 28 May.
DeleteEBA Decision a foregone conclusion? Written before even the Oral Proceedings before it are even opened?
DeleteGiven that the point at issue is whether the hallowed "right to be heard" is being demolished, that's pretty ironic, isn't it?
What does the right to be heard means at the EPO, when the chair of the boards puts himself as chair of the EBA whilst he promoted Art 15aRPBA2020.
ReplyDeleteWhat is problematic is that by behaving as the do, the members of the EBA, with three potential exceptions, are actually supporting the destructive action of the EPA.
In Art 15aRPBA2020, the problem is less the fact that OP as ViCo are imposed upon parties, that the possibility of scattering members of deciding bodies of the EPO across contracting states or even outside.
This is not the EPC as it has been set up, and neither the president nor the BOAC and the AC of the EPO have the legitimacy to change the EPC as is foreseen in the New Normal.
To quote from document BOAC/16/20:
ReplyDelete"The President of the Boards of Appeal proposes that the Boards of Appeal Committee adopts the amendment to the Rules of Procedure of the Boards of Appeal set out in Part II of this document. The amendment involves inserting in the Rules of Procedure of the Boards of Appeal (RPBA 2020) new Article 15a, which clarifies that the Boards of Appeal may hold oral proceedings pursuant to Article 116 EPC by videoconference".
BOAC/16/20 thus serves as concrete evidence that the President of the Boards of Appeal has proposed legislation which contains provisions permitting "without consent" VICOs. The referral in G1/21 is all about whether "without consent" VICOs are compatible with the EPC. In what universe can the very person who proposed subsidiary legislation sit as the Chair of the Enlarged Board tasked with deciding whether that legislation is compatible with the Convention?
It could perhaps be said that the EBA needs time to consider the objections to partiality, and that they will do so in due course. However, much like the answer to the referral in G1/21, the EBA's ultimate decision seems to have been made already.
If the EBA ultimately decided to exclude Mr Josefsson from the proceedings, it would need to address the fact that he has already participated in the proceedings, contrary to Art 24(1) EPC. This would then force the EBA to rescind the decisions taken by Mr Josefsson, including decisions on the members appointed the EBA, as well as on the timing and manner of oral proceedings.
Given the information in the above quote from BOAC/16/20, it is inconceivable that Mr Josefsson would have been unaware that his participation in G 1/21 would be entirely inappropriate, if not unlawful. In view of this, as well has the fact that he has already participated in the proceedings, we must therefore conclude that Mr Josefsson has no intention of self-recusing from G1/21.
Also, even before 16 March, epi warned that, to avoid the appearance of partiality, Mr Josefsson should not participate in the referral. Thus, given the extraordinary speed with which the EBA has acted on other matters connected with the referral, we can conclude that the EBA has no intention of reaching a speedy conclusion on the possibility of a FORCED exclusion of Mr Josefsson.
Taking all of the above together, it is hard, if not impossible, to reach the conclusion that the EBA will simply brush off the well-founded objections of partiality and continue with the current composition of the EBA ... with entirely predictable consequences for the outcome of the referral.
It looks like the first set of non-anonymous amicus submissions is on the public file. They were filed by VESPA (the Swiss professional body). Largely endorsing the view taken by the board in T1807/15, and criticizing other recent decisions that decided differently (e.g. T2320/16). Also mentioned 'Zoom fatigue' - I don't know if that strengthens or weakens the submissions overall.
ReplyDeletehttps://register.epo.org/application?documentId=E53S1W305855DSU&number=EP04758381&lng=en&npl=false