Key points
- Petition for review R 16/23 was forwarded to the Enlarged Board in a five-member composition. The petition for review concerns decision J 6/22 where the Legal Board did not hold oral proceedings although these were requested and decided to reject the request for re-establishment for the late filing of the Statement of grounds of appeal.
- The petition for review is in the public part of the file here. A well-known patent attorney firm is handling the case.
- In the end, the request for re-establishment is based (at least at the root) on a burn-out of a European patent attorney who is referred to in the petition for review as Ms. K. This elegantly allows the petition for review to be visible in the public part of the online file.
- Oral proceedings are scheduled for 21 November 2025 by video conference and will be public - see the summons here.
- The Legal Board furthermore issued no preliminary opinion in advance. That is argued to be a separate procedural violation (Art. 113(1) EPC). So, perhaps that will be the focus of the debate.
Compare with T 1874/23, just published this week: https://www.epo.org/en/boards-of-appeal/decisions/t231874eu1
ReplyDeleteCatchword:
1. The requirement for immediate and complete substantiation of a request for re-establishment corresponds to the principle of "Eventualmaxime/Häufungsgrundsatz/le principe de la concentration des moyens", according to which the request must state all grounds for re-establishment and means of evidence without the possibility of submitting these at a later stage.
2. Dynamic interpretation of the EPC, as derived from Articles 31(1) and 31(3) Vienna Convention on the Law of Treaties, must take account of developments in national and international procedural law, notably as regards the guarantees of fair trial before a tribunal of law (Article 6(1) ECHR).
3. There is no "absolute" right to oral proceedings upon a party's request, but it is subject to inherent restrictions by the EPC, and due to procedural principles generally recognised in the Contracting States of the EPO.
4. If oral proceedings do not serve any legitimate purpose, the requirement of legal certainty in due time prevents the Board from appointing them.
5. It is not the purpose of oral proceedings in the context of proceedings for re-establishment to give the appellant a further chance to substantiate their factual assertions or to provide evidence despite the absence of factual assertions in the request for re-establishment.