Key points
- The opponent and the proprietor both appeal. The Board issues a communication (that contains the preliminary opinion). The proprietor withdraws its request for oral proceedings within one month of the communication. The opponent withdraws its request for oral proceedings more than one month of the communication (by announcing it will not attend the oral proceedings). The oral proceedings are then cancelled.
- Is the opponent's appeal fee reimbursed at 25% under Rule 103(4)(c)??
- The Board: "As no oral proceedings took place, both conditions of Rule 103(4)(c) EPC, that "any request for oral proceedings is withdrawn ... within one month ..." and "no oral proceedings take place" (emphasis by the Board), are met(Case Law of the Boards of Appeal 11th Edition (2025), V.A.11.12, e.g. T 488/18). 3.
- Consequently, both appeal fees are to be reimbursed at 25%."
- Rule 103 EPC is a gift that keeps on giving for bloggers and handbook writers.
- I don't think the decision is correct, by the way. According to CA/80/19, point 82, "If a request for oral proceedings is withdrawn in good time before the oral proceedings, the Board may be able to use this freed-up capacity to schedule oral proceedings in another appeal case. Such withdrawals will also allow interpretation to be cancelled in sufficient time to reduce or eliminate interpreting costs."
- In the present case, the oral proceedings could be cancelled only after the opponent withdrew its request for oral proceedings, which was more than one month after the communication. The incentive for any appellant who had requested oral proceedings should be to withdraw its request for oral proceedings within one month of the Board's communication.
- On the other hand, the AC document is from 2019, before Vico oral proceedings became the rule. Hence, there may be less of a need for an early withdrawal of the request for oral proceedings.
EPO
The link to the decision is provided after the jump.
