14 December 2021

T 0245/18 - Art. 15a RPBA compatible with the EPC

 Key points

  •  Oral proceedings took place on 21.05.2021 in this case, without the consent of the appellant.
  • The Board did not announce a decision at the end of the oral proceedings and issued the decision in writing on 29.10.2021, i.e. one day after the reasons of G 1/21 were published. Thereby the Board applied Article 15(9)(b) RPBA 2020.
  • The Board adds a headnote that it applied new Art. 15(9) RPBA 2020 in view of pending referral G 1/21.
  • The Board, in translation: “The board then decided not to issue a decision on the matter before the Enlarged Board of Appeal had decided in proceedings G1 / 21 and set a date for sending the written reasons for the decision on 30 June  2021 - later extended in accordance with Article 15 (9) RPBA 2020 to 30 October 2021.
  • The Board, on new Art. 15a RPBA: “The dispute is therefore limited to the purely legal question of whether a video conference hearing is an oral hearing within the meaning of Article 116 EPC and whether it is possible to grant a fair hearing within the meaning of Article 113 EPC. This has been expressed through the change in the rules of procedure (see Article 15 (a) RPBA 2020). The board does not share the view that this provision is incompatible with higher-ranking law of the European Patent Convention. It was confirmed in this respect by the recent decision of the Enlarged Board of Appeal in case G1 / 21, to whose paragraphs 27, 30, 40 and 43, in particular, reference is made.”
    • G 1/21 did not expressly comment on Art. 15a RPBA.
  • The Board: “In summary, a final decision could be issued in the present case and it was not necessary to re-enter the oral hearing, since the decision of the Enlarged Board of Appeal in case G1 / 21 basically confirmed the legal view of the board and also because the factors applied by the board in its exercise of discretion within the framework of 15 (a) RPBA correspond to those which the Enlarged Board of Appeal has now also considered relevant in the aforementioned decision (see paragraphs 44 to 51).”

T 0245/18 - 

decision text omitted.

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