EP 3 385 548 B1 relates to a fixing device.
Brief outline of the case
The OD decided maintenance according to AR4b.
The proprietor and both opponents appealed.
The proprietor requested a few times postponement of the OP. These requests were rejected by the board.
The board decided maintenance according to AR6, but stayed the procedure waiting for G 1/25.
The proprietor’s reasons for requesting postponement
The proprietor’s representative requested postponement of the OP as he is meant to participate in a professional development course at the University of Hagen where presence is required. As soon as he heard about the event, he requested postponement. As evidence, he attached an email showing the schedule for the in presence phase.
Two days before the OP, the original representative informed the board that he would be unable to attend the OP for the reason stated and that another representative would attend in his place.
The proprietor complained, with reference to Art 112a(2,c), that the refusal to postpone the OP constituted a violation his the right to be heard under Art 113(1). Due to the complexity of the case, his replacement would only have been able to familiarise himself with it to a limited extent in the time remaining since the refusal to postpone the OP. It repeated its request for postponement of the OP.
The proprietor could not be accused of acting unfairly by bringing the infringement action. It had only brought the action after the licence negotiations had been broken off and the opposition proceedings had been concluded, and it had ultimately only brought the action to prevent its claims from becoming time-barred. The OP could still be held in early 2026, as the infringement hearing before the Düsseldorf Regional Court had been postponed from the beginning to the end of February 2026.
The request for postponement was repeated at the opening of the OP.
The new representative explained that the original representative was the “representative of choice” of the proprietor. Due to his attendance at the course in presence, the “representative of choice” was unable to represent the proprietor at the OP. Although attendance at the course was not a prerequisite for admission to the subsequent examination, the event was awarded one ECTS credit.
Although the present proceedings had been accelerated, this should not restrict the rights of the parties involved, in particular the proprietor’s right to be represented by the “representative of choice”.
The opponents’ position on the postponement
The opponents argued that there was no serious reason that would justify postponing or adjourning the OP, as there was no obligation to attend the course and attendance was not a prerequisite for the exam or any assessment. The new representative, who represented the proprietor at the OP before the board, was also the lawyer responsible for the infringement proceedings and was therefore familiar with the case.
The board’s refusal to postpone the hearing had been made two months before the OP, so that the new representative had had sufficient time to prepare for the OP.
The boards decision on the postponement
In a communication in reply to the request the board rejected a first time the request for postponement, on the grounds that participation in a course in presence could not justify a postponement, as it was not a ‘serious reason’ within the meaning of Art 15 (2) RPBA.
The board added that the appeal proceedings had been accelerated due to the pending infringement dispute between the proprietor and the second opponent and a postponement of the OP to 2026 did not appear appropriate due to the pending infringement action.
Art 15(2,b) RPBA contains a list of reasons that may justify postponing OP and may therefore be considered ‘serious reasons. However, the mere fact that the party concerned states and substantiates such a reason does not mean that the board must exercise its discretion to grant the request for postponement.
Attendance at a course in presence at a university is not mentioned in the list of possible reasons that may justify a postponement.
It is not apparent that attendance at the course was ‘mandatory’ in the sense that non-attendance would, for example, be grounds for exclusion from the exam or from another assessment. In any case, the absence of such an obligation suggests that there is no ‘serious reason’.
Nor can the fact that the replacing representative was only able to ‘familiarise himself with the case to a limited extent in the time remaining since the request for postponement was denied’, can be seen as a reason for postponement.
In response to a question from the board during the OP, the replacing representative acknowledged that he had been able to prepare himself sufficiently. The board considered a familiarisation period of two months to be sufficient in the present case.
The proprietor’s argument that, due to the refusal to postpone the OP, it could not be represented by the ‘lawyer or representative of its choice’ who has been advising it for years, justify a postponement is not determining.
The right to be represented by a “lawyer or representative of one’s choice” in OP is not unlimited. If this right were to apply without restriction to the question of postponing OP, this would ultimately mean that the board would be obliged to postpone the OP for any reason whatsoever, simply because the representative of choice would not be able to attend the OP.
Rather, this right must be viewed in conjunction with the requirement of a “serious reason”. If the representative of choice is prevented from attending for a serious reason, this may justify a postponement. In the present case, however, there was no “serious reason”.
Comments
Under the previous RPBA, the boards made clear that a party has no right to be represented by a representative of choice. In general, a change of representative was never a reason to postpone OP.
The condition provided in Art 15(3) RPBA07 that it had to be justified why another representative cannot substitute for the representative prevented from attending the OP has been deleted in the valid RPBA, see e.g. T 1610/08, Reasons 3.
In T 0699/06, Reasons 7, the representative argued that, in view of a commitment related to his profession, he could not “be in two places at one time”. That situation arises for work-related reasons. This was considered by the board as representing “excessive work pressure”, and could not justify postponement.
Deletion of Art 15(3) RPBA07in the valid RPBA does not mean that a party can only be represented by his “representative of choice” or its “lead counsel”.
In T 1841/23, commented on this blog, postponement of the OP was refused as an intervener joined the appeal following an action for infringement before the UPC.
In the present case, the second opponent has been brought before the Düsseldorf Regional Court for patent infringement.
In view of the existing case law, and in the present case for legal security, a postponement was thus not on the cards.
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