EP 3 425 446 B1, relates to a method, device and computer program for virtually adapting of a spectacle frame.
Brief outline of the case
The patent was maintained according to AR3 and both opponents appealed.
Eventually the board decided revocation of the patent for added matter.
The case is interesting as the proprietor objected that the publicity of the OP before the board was not guaranteed.
An objection under R 106 was filed by the proprietor after rejection of the corresponding request, was as well rejected by the board.
The proprietor’s point of view
In the proprietor’s opinion, the organisation of the OP before the board did not comply with the principle of publicity.
The public was unable to find out that an OP would be held in the present case on 19.03.2025.
The public includes not only the “interested public”, who are interested in the present case anyway and may therefore have been informed of the date of the OP via the online file, but ‘everyone’.
Since the OP on 19.03.2025 had not been announced separately at the entrance to the building in Haar, but only together with four other OP of the proprietor, all of which were announced on 18.03.2025, and had not even been signposted at the entrance to the hearing room, the “general public” had not been able to attend the OP due to a lack of the necessary information.
This constituted a violation of the principle of publicity, which is part of the right to be heard under Art 113(1), according to which the proceedings must take place under public scrutiny.
This important legal requirement was not fulfilled by the fact that the date of the OP could be found in the public online file. The public could not be expected to “click through” all pending files to find out that OP in the present case would take place on 19.03.2025.
The board’s decision
As stated by the opponents at the OP, the date of the OP was easily accessible to the public in the online register.
At the reception desk in the building of the OP rooms, one was directed to the room in which this OP took place. By posting the OP date in the online file, the public had sufficient opportunity to inform themselves about the OP, in particular that the hearing would take place on 19.03.2025.
In the board’s opinion, this alone satisfies the principle of publicity.
In the opinion of the board, the inclusion of a corresponding notice in the online calendar of OP before the boards is not a prerequisite for compliance with the principle of publicity of OP.
Comments
The same problem arose in T 1713/22, cf. EP 3 425 446 B1, which ended with remittal to the OD for lack of N of claim 1 as granted over a document not mentioned in the ESR. The proprietor and one opponent were identical in both cases. In T 1713/22, the opponent submitted at the OP that the OP date was easily accessible to the public in the online file. The decision in matters of publicity of the OP was then identical.
In R 7/09 and R 4/17,the EBA held that a proprietor does no have to consult the register in order to download the notice of appeal and the grounds of appeal which were never notified to it. The is way from the absence of the mention of an OP in the online calendar of OP before the boards.
For the surplus, the EPO page relating to the online OP calendar of the boards of appeal contains the following disclaimer:
“The EPO would like to point out that the content of this database is intended for information purposes only and that no guarantee is taken for its completeness. It should be noted that OP may be cancelled at short notice. Interested parties are therefore advised to contact us to check that the OP are actually taking place”.
This is a further reason for considering that the proprietor’s request was unfounded from the start. The information of the “public” about OP in opposition and appeal is a service from the EPO which does not generate any rights. A qualified representative should be aware of this.
I participated in hundreds of OP, albeit in first instance, and it happened only very exceptionally that members of the “public” were present. Mostly the “public” consisted of qualified representatives. In view of their hourly rates, they were not present just for fun.
One wonders what could have motivated the proprietor, and its representative, to raise such a pointless and futile issue, and on top to raise an objection under R106. In most life situations, one has to behave reasonably , especially when there are no vested rights that can be invoked.
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