Brief outline of the case
The proprietor appealed the decision of the OD to revoke the patent.
OP in-person were scheduled for 07.07.2022.
On the 27.06.2022 the proprietor’s representative requested postponement of the OP.
The OP took place as scheduled on 07.07.2022, not in-person but as ViCo.
The board confirmed the revocation.
Request for a change of date for an OP
The proprietor/appellant requested by letter dated 27.06.2022 that OP scheduled for 07.07.2022 be postponed until a later date.
The reason given was that its representative’s passport had been lost, with the result that the representative was unable to travel overseas to attend the OP.
The representative declared that the fast-track passport replacement service offered by the UK government was unavailable due to lack of in-person appointments. Despite daily checks on the availability if appointments, it was impossible for the representative to obtain a replacement passport in time for the oral proceedings.
The board’s position
In assessing whether or not to reschedule oral proceedings, the Board considered the circumstances of the individual case.
The board reminded that in general about the difficulty in finding a new date for OP which increases with the number of parties involved.
In the case at hand, three parties were involved, meaning that the probability of one party not being available on the new date was relatively high.
Moreover, in the present case there is the additional factor that the future availability of the representative itself is uncertain. Indeed, in the time between the proprietor’s request for postponement and the date of the OP, its representative did not manage to obtain documents allowing him to travel. It is thus impossible for the Board to foresee when he would be able to attend OP.
Hence, there was a high probability that the OP, if rescheduled, would only be able to take place in the distant future.
For the board, time is a crucial factor in the present case.
Firstly, the patent in suit had already expired.
Secondly, there was a request for remittal of the case to the opposition division, which, if granted, would have further increased the duration of the proceedings. Therefore, a significant delay in the proceedings at this stage would not have been reasonable for the parties or the public.
For these reasons, the fixing of a new date for the oral proceedings was not justified by the overall circumstances of the present case.
The proprietor’s request for a change of the date fixed for oral proceedings was therefore rejected.
In accordance with the proprietor’s auxiliary request and in view of both respondents’ consent, the OP were conducted by ViCo.
It is a rather unusual situation under which the OP were held as ViCo, but fully understandable.
There was indeed an impairment for the representative to travel to Munich, but the impairment was not caused by a “general emergency” (whatever this might mean).
Filing a request for a change of date a few days before the scheduled one has, besides exceptional circumstances, very little chance to be granted.
Not only the other parties might not be available on the new date the board could suggest in view of its own calendar, but a strict standard has to be applied because all parties have to be treated equally and a liberal approach might give rise to a series of postponements, see T 1102/03 with 11 parties; booked holidays were thus not a sufficient reason to change the date of the OP.
It is good that the other parties agreed to OP by ViCo. In the absence of consent, a mixed-mode OP could also have been held.
Representatives in most European countries have not only a passport but also an ID card. This is in general sufficient to travel within Europe. As there are no ID cards in the UK, losing one’s passport can have dear consequences for a representative.
One positive effect of the RPBA20, probably the only one, is that when requesting a change of date no reasons as to why another representative could not take over at the original date has been dropped at the BA. It was dropped back in 2009 in first instance proceedings.
On the other hand, the great discretion offered to the boards by the RPBA20 has led to a situation in procedural matters which is difficult to understand as each board seems to have its own ruling on how to apply this discretion.