T 1934b/14 - Ancillary Decision about minutes

Key points

• This is an "Ancillary decision"  in case T1934/14 issued 08.10.2018 after the decision of 15.03.2018 wherein the patent was revoked.
• The patent proprietor had requested that the minutes of the oral proceedings before the  Board were supplemented.
• In particular, the Patentee submits that during the oral proceedings, he had requested interruption of the oral proceedings, that the Board had rejected this request at once, that the Patentee had brought forward an objection against the ruling, and that the Board dismissed the objection immediately.
• The Board states that such a request is not in the written notes of the Board and also not the recollection of the Board. The counterparty (opponent) also cannot remember such request, according to the Board. 
• The Board notes that the Patentee "admits that it had not requested to take a request for interruption of the oral proceedings into the minutes".
• The Board notes that according to R2/12, "it is the duty of a party to check whether its objection to a fundamental procedure defect... has been recognized by the Board and will be dealt with". However, the Board finds this rule not decisive, because "according to the Board's knowledge and conviction such a request for interruption ... has .. not explicitly been brought forward".
•  The Board obiter dictum notes that " one might argue whether the filing of the request for correction of the minutes nearly 3 months after notification of the minutes fulfils that requirement' (of requesting correction early).
• In this case, a petition for review R 8/18 is pending wherein the Patentee submits that the refusal of the request for interruption is a fundamental violation of the right to be heard.
•  Rule 106 EPC puts the burden of proof on the petitioner, but with sound recording being forbidden by the Boards- (which seems a rather outdated policy decision to me personally, it is not that privacy of the parties needs to be protected ) -  his evidence position can be very difficult. Theoretically, a party can hire a court reporter or stenographer, but that is extremely expensive. Before the petition for review procedure was introduced with EPC 2000, parties had not a clear legitimate need for sound recording of oral proceedings, but this case clearly shows that it is different under EPC 2000, in my view. 

T 1934/14  of 8.10.2018  - link  ECLI:EP:BA:2018:T193414.20181008

Reasons for the Decision

"Request to file a further request::

1. With regard to this request the Board notes that the respondent in its reply of 7 September 2018 did not comment or object to the Board's opinion in the communication of 3 July 2018 (see "ad I.1." as reported in point II, above). In their declarations annexed to the respondent's reply Mr. Frischknecht Heller and Ms. Höfer only confirmed that such a request (see above I.1.) had been brought forward by the respondent at the beginning of the oral proceedings, what has not been denied by the Board.

2. Therefore, the Board has no reason to depart from its opinion as provided in its communication of 3 July 2018. Consequently, this request for supplementation of the minutes has to be rejected for the reasons referred to above (see II.).

Request to interrupt the oral proceedings:

3. The respondent has not brought forward any facts or arguments let alone evidence that may cause the Board to deviate from its finding set out in the communication dated 3 July 2018 (see above II).

4. The respondent contests that an interruption of the oral proceedings was not explicitly requested. Instead it is emphasised that "we have filed such a request, the Chairman of the Board of Appeal has rejected this request at once and we have brought forward an objection".

5. However, this contention is in variance with the Board's written notes and the recollection of the members of the Board. The Board's position is confirmed by the comment in the appellant's letter of 12 July 2018. There the appellant's representative submitted that he could not recall a concrete request for interruption of the oral proceedings, since otherwise he would have noted such a request in his papers. Accordingly he could not remember that such a request should have been rejected by the Board and an objection had been brought forward by the respondent.

6. The argument of the respondent that "it is expectable and understandable that the Opponent / Appellant is not interested to support our request to correct the minutes and has argued against our position" can be countered by the argument that it can be equally expected that the annexed declarations by the respondent's representatives confirm the respondent's position.

7. The respondent admits that it had not requested to take a request for interruption of the oral proceedings into the minutes presuming that this was an essential of the oral proceedings which certainly would be mentioned in the minutes.

First of all the Board again points to the decision of the Enlarged Board of Appeal (EBA) in R 2/12 reiterating the finding of the EBA that "it is the duty of a party to check whether its objection to a fundamental procedural defect occurring during the oral proceedings has been recognised by the Board and will be dealt with" and that "if a party is really convinced that a violation of its right to be heard has occurred during the oral proceedings the subsequent objection must be clearly raised as such, and not as a mere aside, so that it will oblige the Board of Appeal to react, and require this to be recorded in the minutes in accordance with Rule 124 EPC, at least at a party's request".

The Board agrees with the respondent's statements in the letter of 7 September 2018 that a request for interruption of the oral proceedings not only is an essential of the oral proceedings but as well a "clear procedural step" that is "closely related with the right to be heard". However, irrespective of the judicial requirement set out by the EBA in R 2/12 (see above) not being met by the respondent, according to the Board's knowledge and conviction such a request for interruption of the oral proceedings has in contrast to the respondent's submission not explicitly been brought forward by the respondent and just for this reason such a request is neither mentioned in the minutes, nor in the written decision. Under these circumstances there is thus neither basis to assume that the Board had rejected such a request for interruption, nor that the respondent objected to that rejection.

8. Even though not being essential for the present decision the Board makes the following final remarks:

In its communication dated 3 July 2018 the Board noted that the request for correction of the minutes was only filed nearly 3 months after notification of the minutes. Contrary to the respondent's submission in its letter dated 7 September 2018 in no way did the Board state or even suggest that a "time limit has been disregarded" or that "such a time limitation condition is ... a time limit within the meaning of Article 120 EPC." The respondent itself further points to the Guidelines according to which "the request shall be filed as soon as possible". One might argue whether the filing of the request for correction of the minutes nearly after 3 months after notification of the minutes fulfils that requirement. It appears also not quite understandable and clear why "the minutes have to be analysed in the context of the written decision" when a correction of the minutes is requested. Finally, the Board states that the written decision has been notified with letter dated 16 April 2018, so that it still took nearly 2 months before submitting the request for correction of the minutes.

9. The Board concludes that there is no reason for supplementing the minutes as requested by the respondent.

Order

For these reasons it is decided that:

The request for correction of the minutes of the oral proceedings is refused.