EP 3 418 372 B1 relates to a culture apparatus and a method of controlling the culture apparatus.
Brief outline of the case
The OD decided maintenance according to AR7.
The board confirmed maintenance according to AR7.
The case is interesting in view of the fact that the OP before the board was held in mixed mode.
Originally, the board summoned the parties to in-person OP.
The proprietor’s point of view
The proprietor requested that the OP be held by ViCo to save costs, reduce environmental impact and potentially allow the Japanese client to attend the hearing.
The opponent’s point of view
The opponent requested that the OP be conducted as in-person or, as an AR, in mixed-mode format.
It argued that the reasons provided by the proprietor were insufficient and that in-person OP constituted the optimum format in accordance with decision G 1/21 and a deviation required “good reasons“.
The board’s decision on the format of the OP
The EBA considered in its decision G 1/21 that communicating by ViCo cannot yet be put on the same level as communicating in person, cf. G 1/21, Reasons 38 and 39.
However, the EBA also stated, Reasons 40, that it cannot be concluded from this that the right to be heard or the right to fair proceedings could not be respected when OP were held as a ViCo.
The board considered that this conclusion is equally applicable to where one of the parties participates remotely in OP conducted in mixed-mode format.
There are no circumstances to the present case that prevented applying the above conclusion to the case in hand.
By conducting OP in mixed-mode format, both the proprietor and the opponent are given the opportunity to participate in accordance with their preference. The board also referred to T 939/23, Reasons 1.5.
Comments
We have here a board considering in-person OP as the gold standard in matters of the OP. It did not decide, for its convenience to hold OP by ViCo and did not claim, like in T 1158/20, to claim that “Holding OP by ViCo can meanwhile be often considered an equivalent alternative to in-oerson OP.
The present board, like the one in T 939/23, took into account the desiderata of each party as to the format of the OP.
In T 939/23, the board noted that a party does not have the right to impose on another party the format in which they are to be heard.
It is interesting to note that in T 0385/23 and inT 939/23, the composition of board 3.2.03 differed only by the LQM.
Other bords would do good to take an example of the decision of the present board, and not ignore the wishes of the parties for their own convenience.
OP in proceedings before first instance divisions should not be limited to OP by ViCo. In view of Art 116, G 1/21, should apply equally to all OP, irrespective of the instance. But this is an old story.
Comments
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