Brief outline of the procedure
The proprietor and opponent 1 appealed the decision of the OD to maintain the patent in amended form according to AR2.
Eventually the patent could be maintained in amended form according to AR6 and the case was remitted for adaptation of the description.
The OP took place on 30.06.2022.
By letter of 12 May 2022, opponent 1 requested that the OP be held by ViCo.
The Board rejected the request for the OP to be held as a ViCo by the professional representative of opponent 1.
The board reminded that pursuant Art 15a(1) of the RPBA20, it may decide to hold oral proceedings by ViCo under Article 116 EPC at the request of a party or of its own motion if it considers this appropriate.
The reason for requesting OP by ViCo was the fact that the representative of opponent 1 was based in Berlin.
However, in the board’s view, the indication of the office location alone is not a sufficient reason to justify a request to hold a video conference.
Furthermore, the complexity of the case argued in favour of a face-to-face meeting.
This decision is fully in line with T 2341/16 in which a BA has refused a request for OP by ViCo.
We have thus another BA which takes the reasoning in G 1/21 to heart and does not accept to hold OP by ViCo merely because a representative is not sitting in Munich.
Amending Art 15a(1)RPBA?
It should however be envisaged to amend Art 15a(1) RPBA20 in view of the reasons given in G 1/21.
Such a move would avoid completely diverging decisions in this matter like T 2526/19.
In T 2526/19 the BA held that “the compliance of Article 15a RPBA with the EPC has not been questioned by the Enlarged Board of Appeal in case G 1/21, whether or not a “general emergency” applies. Article 15a RPBA thus remains applicable, without any qualification, to these and future appeal proceedings”.
It is certainly not asking too much for a certain coherence in procedural matters.
In such matters the attitude of the BA should be more predictable.
I allow myself to remind of the vastly diverging attitude of the BA in matters of deletion of claims or of combination of granted claims.
Going to appeal should not become a lottery in procedural matters in spite of the large discretion given to the BA with the RPBA20.
When amending Art 15a(1)RPBA20, it could be thought of a legal basis for Art 15a(3)RPBA20.
OP in first instance?
If a file is too complex to be dealt with in an OP by ViCo before a BA, it was certainly also the case before the OD. Why is there a different standard for OP before the first instance and before the EPA?
Art 116 does not not differentiate between OP before the BA and before the first instance.
The choice of the form of OP should be left to the parties.