EP 2 952 015 B1 relates to a state of charge indication in a hearing device.
Brief outside of the case
The opposition was rejected and the opponent appealed.
The opponent requested OP as an AR in its notice of appeal.
The proprietor also requested OP as an AR in its reply to appeal.
The board decided to holp OP on its own volition.
The proprietor withdrew one day before the OP his request for OP and announced that it would not participate.
The OP were cancelled and the decision was given in writing.
In this blog we will deal with the withdrawal and the non-participation of the proprietor to the OP.
The facts
The proprietor’s representative provided his videoconferencing details only three working days before the arranged OP, after having been prompted to do so by the registry. It appeared that these details had not been provided earlier due to an oversight. The board concluded from this that the proprietor had every intention to participate.
However, the proprietor’s representative notified the board of their non-participation one day before the scheduled OP. At the same time, the proprietor withdrew its request for OP.
The board’s comments on the late announcement
For the board, announcing its non-participation one day before the scheduled OP was regrettably late and of course unacceptable for the board and the other party.
While the board acknowledged the representative’s apology in this case and understood that late instructions can occur, timely communication with the board’s registry is essential, particularly as scheduled OP approach. The board referred to T 124/22, Reasons 1.1.
In view of the withdrawal of the request by the OP, the board did not consider the conduct of OP to be expedient, and the opponent’s AR for OP did not apply. As a consequence, the decision was handed down in written proceedings pursuant to Article 12(8) RPBA.
Given that the board and other parties evidently invest time in preparation, late announcements of non-participation disrupt proceedings and show a lack of consideration. Such announcements should thus be given well in advance.
Comments
For a start, announcing the non-participation to OP on the eve of the OP is not showing the necessary respect to the board and the other party, irrespective of the late information of the client. As late as 2009 the epi invited its members to inform the boards as early as possible when they did not intend to participate.
As none of the parties had requested OP by ViCo, the board nevertheless decided the form of OP on its own volition and hence for its own convenience. By doing so, it superbly ignored G 1/21 without giving any reason for this.
When summoning to OP on 13.09.2023 for OP to be held on 24.09.24, there was not any longer a general emergency impairing the parties’ possibilities to attend in-person OP at the EPO premises.
In Reasons 45 of G 1/21, the EBA held that, holding in-person OP is the gold standard as it definitely fulfils the requirements of Art 113 and Article 6 ECHR.
The board is thus to be first criticised for summoning to OP by ViCo.
By deciding in writing following the withdrawal of the request for OP by the proprietor and its announcement not to participate, the board deprived the opponent from the opportunity to request a different apportionment of costs as he has, as underlined by board, prepared the OP. The board is thus to be criticised as well for not allowing the opponent to file a request for a different apportionment of costs.
All the preparation work of the opponent for the OP was in vain. The bare minimum would have been for the board to decide ex-officio a different apportionment of costs.
If the OP had been held in-person according to the gold standard of G 1/21, the opponent would have had the opportunity to request a different apportionment of costs.
It is thus high time to adapt Art 15a(1) RPBA to G 1/21.
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