T 1573/20 - Clearly inadmissible appeal

Key points

• In this appeal against a refusal decision, no Statement of grounds was filed. A Notice of appeal was filed, including a request for oral proceedings, and the appeal fee was paid. The Board invited the appellant to comment on the missing Statement of grounds; no response was received. The question is how to deal with the request for oral proceedings contained in the Notice of appeal.
• It is established case law that no oral proceedings are held in such a case, see e.g. T 1042/07 hn: “In the absence of anything that can be regarded as a statement of grounds of appeal, the lack of any substantive response to a notification of the inadmissibility of the appeal is considered as equivalent to an abandonment of a request for oral proceedings initially made in the notice appeal”. See e.g. also recent case T 1686/20 essentially repeating that headnote. 
• The present Board takes a different approach: “The situation is therefore comparable to the "clearly inadmissible appeals" considered in decisions G 1/97 and G 2/19. These decisions are concerned with appeals by a non-party or based on non-existing remedies only. Nevertheless, the board is convinced that the Enlarged Board of Appeal did not consider these examples to be exhaustive. Rather, it acknowledged as a matter of principle that there are exceptions to the right to oral proceedings under Article 116 EPC (G 1/97, Reasons, point 6, last paragraph; G 2/19, Reasons, B II 2 and 8, C I). It follows from the rationale of the above decisions that the present case falls in the category of clearly inadmissible appeals and can be rejected without holding oral proceedings.”
• I note that in G2/19, the Enlarged Board considered the first question to be inadmissible (“In appeal proceedings, is the right to oral proceedings under Article 116 EPC limited if the appeal is manifestly inadmissible?”), because “[the] first question [] amounts to a generalisation applying to all cases in which an appeal appears to be "manifestly inadmissible". [An] answer to this question is only of extraneous and rather academic interest. That is insufficient to find the question admissible, especially as its reference to the criterion of a "manifestly inadmissible appeal" introduces an imprecise legal notion not taken from the European Patent Convention, which, therefore, does not offer a more detailed basis for defining it more precisely.”
• The present decision finds that there is a “category of clearly inadmissible appeals”, which is not restricted to the two cases considered by the Enlarged Board and is hence open-ended, moreover appeals in this category “can be rejected without holding oral proceedings”.

EPO T 1573/20 - link

Reasons for the Decision

Missing statement of grounds of appeal

1. No written statement setting out the grounds of appeal was filed within the time limit provided by Article 108, third sentence, EPC in conjunction with Rule 126(2) EPC. In addition, neither the notice of appeal nor any other document filed contains anything that could be regarded as a statement of grounds pursuant to Article 108 EPC and Rule 99(2) EPC. Therefore, the appeal has to be rejected as inadmissible (Rule 101(1) EPC).

Request for oral proceedings

2. In view of the appellant's request for oral proceedings "in advance of any decision adverse to the Applicant" (see notice of appeal of 7 January 2020, page 2), the board considered the need to hold oral proceedings. Despite the absolute nature of the right to oral proceedings under Article 116 EPC, the board concluded that oral proceedings were not required in the present circumstances.

3. The board notes that the appellant did not file any observations in reply to the communication of 17 July 2020. In particular, the appellant did not contest the finding there that no statement of grounds of appeal had been received, nor did it invoke an extension of the time limit under Rule 134(2) or (5) EPC or file a request for re-establishment into the time limit for filing the statement of grounds of appeal.

4. Therefore, holding oral proceedings would have served no other purpose than confirming the (undisputed) preliminary finding that no statement of grounds of appeal had been filed, and announcing the decision afterwards. There was no contentious matter on which the appellant had to be heard according to Article 113(1) EPC. Oral proceedings would thus have had no legitimate aim. Even more, had the appellant insisted on holding oral proceedings in the absence of any dispute, this would have amounted to a breach of the duty to act in good faith (G 2/97, Reasons, point 4.2).

5. The situation is therefore comparable to the "clearly inadmissible appeals" considered in decisions G 1/97 and G 2/19. These decisions are concerned with appeals by a non-party or based on non-existing remedies only. Nevertheless, the board is convinced that the Enlarged Board of Appeal did not consider these examples to be exhaustive. Rather, it acknowledged as a matter of principle that there are exceptions to the right to oral proceedings under Article 116 EPC (G 1/97, Reasons, point 6, last paragraph; G 2/19, Reasons, B II 2 and 8, C I). It follows from the rationale of the above decisions that the present case falls in the category of clearly inadmissible appeals and can be rejected without holding oral proceedings.

Order

For these reasons it is decided that:

The appeal is rejected as inadmissible.