T 1511/15 - The first summons, for Art. 25(3) RPBA 2020

Key points

• This decision was published already 20.05.2021.
• From the headnote: “In a case where the Board has sent more than one summons to oral proceedings, it is normally the summons which was first sent which is "the summons to oral proceedings" within the meaning of Article 25(3) RPBA 2020”
• The same principle applies for Communications under Rule 100(2) EPC: the first Communication is relevant under Article 25(3) RPBA 2020.
• This decision is in line with T1156/15 issued 23.02.2021 not cited by the present Board: “it is immaterial for the application of Article 25(3) RPBA 2020 that further summons have been notified after the entry into force of the new Rules of Procedure merely replacing summons that were notified before that date. Therefore Article 13 RPBA 2007 is applicable”.
• The decision is also in line with T0950/16 r.3.2 published 13.11.2020.

Headnote:

 “In a case where the Board has sent more than one summons to oral proceedings, it is normally the summons which was first sent which is "the summons to oral proceedings" within the meaning of Article 25(3) RPBA 2020”

T 1511/15

https://www.epo.org/law-practice/case-law-appeals/recent/t151511eu1.html 

3. Second auxiliary request: Applicable law

3.1 According to Article 25(3) RPBA 2020, where the summons to oral proceedings or a communication under Rule 100(2) EPC has been notified before the date of the entry into force of RPBA 2020, Article 13 RPBA 2007 shall continue to apply.

3.2 In the present case the original summons to oral proceedings was dated 22 November 2019, and was therefore notified before the date of the entry into force of RPBA 2020, which was 1 January 2020 (Article 24(1) RPBA 2020). The oral proceedings were cancelled as part of the precautionary measures against the spread of coronavirus (COVID-19). A second summons to oral proceedings was subsequently sent dated 22 June 2020, and was therefore notified after the date of the entry into force of RPBA 2020.

In a case where more than one summons is sent, it is not explicitly stated in RPBA 2020 which is to be considered "the summons to oral proceedings" within the meaning of Article 25(3) RPBA 2020.

3.3 In general, submissions already on file at the date of the entry into force of RPBA 2020 may be affected by the new provisions. However, the special exceptions of Articles 25(2) and (3) RPBA 2020 are provided "in order to protect legitimate expectations which parties may have had at the time of filing such earlier submissions" (see the "Explanatory remarks" to Article 25(1) RPBA 2020 in Supplementary publication 2, OJ EPO 2020, page 71).

3.4 The Board's understanding of this is as follows: Where, for example, a communication under Rule 100(2) EPC has been notified before the date of the entry into force of RPBA 2020, statements in the communication may give rise to the expectation that any amendments to a party's appeal case will be dealt with under Article 13 RPBA 2007, and it would therefore be unfair to subsequently impose the "strict provision of revised Article 13, paragraph 2" to such amendments (see the "Explanatory remarks" to Article 25(3) RPBA 2020, in Supplementary publication 2, OJ EPO 2020, page 72).

3.5 Where several communications under Rule 100(2) EPC are sent, such "legitimate expectations" may well arise as a result of statements made already in the first such communication, and so if such expectations are to be protected, it is the first communication which must be decisive for the purpose of applying Article 25(3) RPBA 2020.

Where a summons to oral proceedings is sent, there will also be a communication of the Board under Article 15(1) RPBA 2020, which may be sent together with the summons (see the "Explanatory remarks" to Article 15(1) RPBA 2020, in Supplementary publication 2, OJ EPO 2020, page 62). Where more than one summons is sent, "legitimate expectations" may arise as a result of statements in the first such communication, and the conclusions of the previous paragraph apply. This is certainly so in a case such as the present one where the cancellation of the first summons and thereby the necessity to issue a further summons cannot be imputed to the party.

3.6 Hence, in a case where the Board has sent more than one summons to oral proceedings, it is normally the summons which was first sent which is "the summons to oral proceedings" within the meaning of Article 25(3) RPBA 2020.

3.7 In the present case the first summons to oral proceedings was notified before the date of the entry into force of RPBA 2020, and hence, according to Article 25(3) RPBA 2020, Article 13 RPBA 2007 applies.