T 0013/19 - Courtesy owed to a Board

 Key points

• The Board, in the headnote: “It is no more than the usual degree of courtesy owed to a Board of Appeal as a court of final appellate jurisdiction that a party's intention not to attend the oral proceedings or any impediment to attendance is communicated as early as possible”
• The phrase "court of final appellate jurisdiction" appears to be used (according to Google) for referring e.g. to the Privy Council. I think the question of whether the Boards of Appeal are a court is somewhat controversial. 
• “If a representative is able to do so only when oral proceedings are already imminent, the courtesy requirement enshrined in Article 6 of the Code of Conduct of the Institute of Professional Representatives before the European Patent Office ("epi Code of Conduct"; cf. OJ EPO 2020, Supplementary publication 1) should have provided the representative with ample motivation to inform the registry promptly. Instead, the representative merely contented himself with remaining silent until he was contacted by the registrar and even then only filed a corresponding written confirmation after repeated enquiry.”
• I note that we don't know what instructions the representative had received from the client. If the client does not say that they have decided firmly to not attend oral proceedings, but just wishes to keep the options open or is not responsive to the reminders of the representative, the representative may be in a difficult position. 

T 0013/19

https://www.epo.org/law-practice/case-law-appeals/recent/t190013eu1.html

Reasons for the Decision

1. Procedural matters

1.1 The appellant having been duly summoned, the oral proceedings were held in absentia pursuant to Rule 115(2) EPC and Article 15(3) RPBA 2020.

1.2 As stated in point III above, the appellant's then representative informed the board at a very late stage that he would not be attending the arranged oral proceedings because he had resigned from representing the appellant. While it is not uncommon for a party not to appear at oral proceedings, the registry of the competent board is usually given notice well in advance of the oral proceedings.

It may have happened that the former representative became aware of the termination of his representation for the current case only in extremis. However, this seems to be unlikely, given that, from the file, it is apparent that the automatic debit order referring to the deposit account held by the representative's law firm was already revoked on 27 July 2020, upon the representative's request.

1.3 In any case, it is no more than the usual degree of courtesy owed to a Board of Appeal as a court of final appellate jurisdiction that a party's intention not to attend the oral proceedings or any impediment to attendance is communicated as early as possible.

If a representative is able to do so only when oral proceedings are already imminent, the courtesy requirement enshrined in Article 6 of the Code of Conduct of the Institute of Professional Representatives before the European Patent Office ("epi Code of Conduct"; cf. OJ EPO 2020, Supplementary publication 1) should have provided the representative with ample motivation to inform the registry promptly. Instead, the representative merely contented himself with remaining silent until he was contacted by the registrar and even then only filed a corresponding written confirmation after repeated enquiry.

The written confirmation being filed at an unreasonably late stage, the board became aware of an alleged change of the applicant's status de facto only one day before the oral proceedings, which prevented the registry from establishing whether or not that alleged new applicant - or a new representative - would be attending the oral proceedings instead. This necessitated the board to prepare for the oral proceedings and to wait courteously on the day of the oral proceedings in the event that someone would appear on behalf of the appellant - despite the well-known risks associated with the current Covid 19 pandemic.

1.4 It is lamentable that the present board is hence compelled to refer to the statement of T 954/93 (cf. Reasons, point 2) and to recall that such conduct is reprehensible (see also T 930/92, Headnote I).