J 0007/20 - Rule 142(1)(c) and heavy snow

 Key points

• This is a sad case. The petitioner for review was not able to attend the oral proceedings before the Board because all flights were cancelled due to a snowstorm. "Oral proceedings [before the Enlarged Board] were scheduled to start at 10:30 hours on [Monday] 4 February 2019. The representative did not appear. In the course of the day, beginning at 10:22 hours, employees of his association informed the Enlarged Board, by telefax and telephone, that he [i.e. the representative] would not attend due to cancelled flights; there was however no request for postponement of the hearing. 
  The Chair opened the oral proceedings at 12:30 hours and closed them at 12:48 hours, after having announced the unanimous rejection of the petition as clearly inadmissible (for want of a Rule 106 EPC objection)." [see here; R7/18]
  
• " Later that day [04.02.2019], the representative informed the Enlarged Board by telephone that he had tried to contact Mr. [C] by telephone the whole day, and had also sent him an email, unaware of Mr. [C]'s recent retirement from the duty as the Enlarged Board's registrar [note: on 31.01.2019]. The representative's office then forwarded to the Enlarged Board the email, originally sent at 7:53 hours, which indicated his non-attendance at oral proceedings due to cancelled flights, and his wish to have the hearing rescheduled." 
• A more detailed review of the facts can be found here. There is certainly a practice point to be learnt from the case. 
• Now turning to the present appeal: " After the Enlarged Board had dispatched its decision rejecting the petition for review in writing, the proprietor directed itself to the Legal Division and "request[ed] interruption of the proceedings" with effect from the day prior to the hearing before the Enlarged Board" 
• The Legal Division refused the request. The requester appeals.
• The Legal Board: "If this appeal were successful, the decision of the Enlarged Board would have no legal effect, as it would have been handed down while the proceedings were interrupted (cf. T 1389/18). " 
• As a comment, T1389/18 decided so for a decision of an opposition division, but indeed the same principle applies to a decision of the Enlarged Board on petitions for review, as held in the present case, and by implication also to decisions of the Boards of Appeal.
• The requester, formerly petitioner for review, is the patentee. The Legal Board, on the status of the opponents in the present appeal: "thus, the appeal proceedings may adversely affect the legal position of the opponents. They are therefore considered parties to these proceedings (cf. J 12/19, reasons 2.2.3 and 2.3).' 
• The question is whether the undisputed facts qualify as legal incapacity of the representative in the sense of Rule 142(1)(c) EPC. 
• " Under the established case law of the Boards of Appeal, legal incapacity of the representative relates to the mental state and rationality of the representative. The mental state from which such incapacity can be derived has to be such that the representative is so totally or nearly totally unable to take rational decisions that all its professional duties, and not just an isolated case, are affected. To assess the representative's mental state, a reliable medical opinion is indispensable "
• The Legal Board confirms that the list of events in Rule 142(1)(c) is exhaustive.
• "the Legal Board agrees with opponent 1 that absurd cases could follow in case unfortunate, unforeseen events would generally constitute legal incapacity and trigger the radical mechanism of Rule 142(1)(c) EPC. The example of a representative temporarily caught in a traffic jam is not unthinkable." 
• "the Legal Board can but firmly note that the mental state of a representative and the total or near total inability to take rational decisions are something completely different to the external, practical and one-off kind of events - inter alia heavy snow, cancelled flights and failed communication - adduced by the proprietor as hindering the representative in the current case. These events do not constitute "legal incapacity of the representative"."  
• Finally, "there is no lack of procedural provisions in the EPC which would prompt application of Article 125 EPC, as suggested by the proprietor." 

J 0007/20 - 

https://www.epo.org/law-practice/case-law-appeals/recent/j200007eu1.html

decision text omitted.