19 Aug 2019

R 0007/18 - Cancelled flights and the Enlarged Board

Key points

  • " VII. Oral Proceedings before the Enlarged Board of Appeal were scheduled to start at 10:30 on 4 February 2019. After no representative of the petitioner was present at 10:30 and taking into account that travel conditions might be difficult due to bad weather, the registrar of the Enlarged Board undertook enquiries with the office of the petitioner's representative. The start of the oral proceedings was delayed to allow said enquiries." 
  • " VIII. The Enlarged Board then took note of a telefax letter sent by an employee of [the professional representative's] office [a large patent attorney firm in The Netherlands), which contained the information that [the professional representative] would not attend the hearing taking place on 4 February 2019 at 10:30 am due to cancelled flights [presumably this fax] . The telefax letter did not contain any request for postponement of the oral proceedings. The information given in the telefax letter was also obtained in two telephone conversations between the registrar of the Enlarged Board and two employees of the representative's office, Ms [X1] and Mr [X2]. The Enlarged Board then decided that the oral proceedings would take place in the absence of the petitioner's representative and started the oral proceedings at 12:30.
  • The petition for review was unanimously rejected as being clearly inadmissible during the oral proceedings on 04.02.2019.
  • The petitioner sent a letter about the oral proceedings taking place in his absence on 25.02.2019 explaining that on Sunday 3 Feb there was heavy snow and "the flight was cancelled" from Turin to Munich (by the airline I understand). The next flight on Monday 4 Feb at 6AM the next flight was also cancelled. Furthermore, the Registrar of the Enlarged Board Mr. C had retired on 31.01.2019 and the representative could not contact anyone of the Enlarged Board by phone. At the same time, his assistant Ms. X1 sent faxes to the Enlarged Board, the representative could not see the content of these faxes. The first time his assistant could reach someone of the Enlarged Board by phone was about 13:14 when the decision had already been taken (still according to the petitioner's letter).
  • The fax of the assistant Ms. X1 of 09:24 stated in the entire relevant part: "Mr. [professional representative] will not the below hearing due to cancelled flights" (leaving open who had cancelled the flights).
  • The Registrar issued a Communication on 10.04.2019 informing the petitioner that the email (p.2 of the PDF) of the representative to the Registrar Mr.C of 4 Feb 07:53 a.m. (mentioning 'events have conspired to prevent my arrival in Haar today' and 'my flight ... is cancelled') had no effect firstly because Mr.C had retired on 31.01 and secondly because email has no legal force, recalling that 'urgent queries or communications should, therefore, be sent by fax only, referring tot he Notice OJ 200 p.458) (Interesting to note that  this Notice still has legal force as long as fax is not yet abolished). The Communication refers to phone calls with the assistants Ms.X1 and Mr.X2 on 10:45, 11:23 and indicates that the decision of the Enlarged Board becomes formally res judicata 'as soon as it was pronounced public oral proceedings'. The Communication acknowledges the petitioner's request for interruption under Rule 142(1)and then gives some reasoning - of the Registrar of the Enlarged Board.
  •  On 06.05.2019, the petitioner sent a further letter requesting in essence re-opening of the proceedings invoking inter alia interruption under Rule 142.  The written decision of the Enlarged Board was notified on 19.06.2019. With a letter of 10.07.2019 the petitioner formally requests interruption under Rule 142. With a letter of 25.07.2019, the Legal Division informs the petition that 'all proceedings before the EPO concerning [the patent] have been completed" and that the EBA has already dealt with the request in the Communication of 10.04.2019. On 06.08.2019, the petitioner files a further letter requesting for a decision on the interruption by the Legal Division itself (I don't understand the point fully, the letter of 25.07.2019 is signed by a lawyer of the EPO). 
  • As a comment, under recent decision T 54/17 the Enlarged Board itself appears competent to decide on interruption under Rule 142 caused by events occurring during the petition for review procedure.

EPO R 0007/18 - link

[text omitted; the relevant part is cited above].

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