EP 3 341 031 A1 published as WO 2017/040321 relates to a system and method for fluid sterilisation.
Brief outline of the case
The application has been refused by the ED.
The applicant failed to appeal the decision in due time.
The request for re-establishment failed as “all due care required by the circumstances” has not been taken.
The appeal was thus rejected as inadmissible, cf. R 101(1) in conjunction with Art 108.
The decision that the request for re-establishment and the appeal be rejected as inadmissible was taken right away in writing, despite OP having been requested by the applicant in their request for re-establishment, and also in their appeal.
The board’s decision
For nearly every point in its decision, the present board quoted a large number of decisions of the BA and of the EBA. For the sake of brevity and clarity, only decisions of the EBA will be quoted in the following.
The limitation for presenting submissions in proceedings for re-establishment
The board held that the requirement for immediate and complete substantiation of a request for re-establishment corresponds to the principle of “Eventualmaxime/Häufungsgrundsatz/le principe de la concentration des moyens”, according to which the request must state all grounds for re-establishment and means of evidence without the possibility of submitting these at a later stage.
Only if this requirement for immediate and complete substantiation within the time limit has been fulfilled, might it be permissible to complement the facts and evidence in later submissions, and provided that they do not extend beyond the framework of the previous submissions.
This was not the case here for the request for re-establishment in these proceedings. In particular, no factual assertions were made at least on the provision of supervision and/or an independent cross-check mechanism in the representative’s firm, to make for a normally satisfactory monitoring system.
There was thus, within the time limit of R 136(1), no immediate and complete substantiation of the grounds and facts that would have been necessary for re-establishment.
For the present board, it is not the purpose of OP in the context of proceedings for re-establishment to give the appellant a further chance to substantiate their factual assertions or to provide evidence despite the absence of factual assertions in the request for re-establishment.
The right to OP in general
It is undisputed that the right to OP as guaranteed by Art 116(1) is a cornerstone of proceedings before the EPO. The jurisprudence of the boards generally even follows the assumption of an “absolute” right to OP upon request, as a rule, without room for discussion by the board, and without considering the speedy conduct of the proceedings, equity or procedural economy. The right to OP even stands if no new arguments are to be presented.
However, even this “absolute” right to OP upon a party’s request is subject to inherent restrictions by the EPC and procedural principles generally recognised in the Contracting States of the EPO under Art 125.
As example, the board noted that OP in appeal proceedings against decisions of a Receiving Section, OP are generally only optional, and boards may refuse requests.
Furthermore, a statement of an intention not to attend OP is normally considered equivalent to a withdrawal of the request for OP, even if such a withdrawal had not been declared expressis verbis.
Moreover, an appellant not responding to a board’s communication which points to a missing statement of grounds of appeal and the resulting inadmissibility of the appeal, renders “the initial conditional request for OP to have become obsolete … equivalent to an abandonment of the request”. See G 1/97, Reasons 6, OJ EPO 2000, 322.
In addition, filing an appeal by a non-entitled third party within the meaning of Art 115 is also a clearly inadmissible means of redress, and no OP are thus to be appointed.
In G 2/19, OJ EPO 2020, A87, Reasons B.II.2 and B.II.5, limits to the right to OP have been recognised even in a more general fashion.
Limitation of the right to OP – “Dynamic interpretation” of the EPC
The examples provided by the boards’ jurisprudence show that the language of Art 116(1) is too broad as it literally also covers cases where the appointment of oral proceedings cannot be justified, see again G 2/19, Reasons B.II.2.
The dynamic interpretation of the EPC, as derived from Art 31(1) and 31(3) Vienna Convention on the Law of Treaties, must take account of developments in national and international procedural law, notably as regards the guarantees of fair trial before a tribunal of law, cf. Article 6(1) ECHR.
The board noted that the ECHR has also identified occasions where OP could or even should be dispensed with in pursuit of a party’s right to a fair trial, while thus taking account of the entirety of proceedings. The board quoted here a large number of decisions of the ECHR.
The board noted that the ECHR regularly reiterates the use of dynamic interpretation in their own case law in referring to the ECHR as “a living instrument which … must be interpreted in the light of present-day conditions and of the ideas prevailing in democratic States today”.
For the board, dynamic interpretation comes into play “where considerations have arisen since the Convention [the EPC] was signed which might give reason to believe that a literal interpretation of the wording of the relevant provision would conflict with the legislator’s aims, which might thus lead to a result which diverges from the wording of the law”, see G 2/12, G 2/13, G 3/19, OJ EPO 2020, A119, Reasons XXII; see also G 3/98, OJ EPO 2001, 62, Reasons 2.5.
The boards must guarantee that the EPC is applied in a way that lives up to these standards, to best deal with the dynamic and evolutive environment, in the fairest fashion.
All these considerations further support the conclusion that a literal interpretation of Art 116(1) conflicts with the legislators’ aims, see again G 2/12; G 2/13; G 3/19, Reasons XXII; G 3/98, Reasons 2.5, when OP serve no purpose and would thus only prolong proceedings to no one’s avail.
A literal interpretation of Art 116(1) thus has to make way for a dynamic and evolutive understanding instead, in light of the provision’s object and purpose.
The board concluded that there is no “absolute” right to OP upon a party’s request, but it is subject to inherent restrictions by the EPC, and due to procedural principles generally recognised in the Contracting States of the EPO, cf. Art 125.
If OP do not serve any legitimate purpose, the requirement of legal certainty in due time prevents a board from appointing them.
Comments
When I see the words “dynamic interpretation”, I have reservations.
It should in any case be guaranteed that any “dynamic interpretation” of the EPC does not follow a trend, fashionable at a given time, or be taken in abiding to wishes of an institution which has no links with the EPO.
It could be agreed that, if OP do not serve any legitimate purpose, they could be dispensed with, but this is ignoring the wish of the legislator.
Whether such a decision can be taken by a single board on its own volition is a different matter.
This is the more so since the recent case law of the boards in procedural matters has not been an example of coherence.
That the language of Art 116(1) is too broad and that a literal interpretation of Art 116(1) may conflict with the legislators’ aims is not a decision for a single board to take, but for the EBA. Reference is made here to Art 112 (1,a).
It is thus possible to consider that the present board has gone way beyond its competence, and corresponding questions should have been referred to the EBA.
Even in an opposition is manifestly inadmissible, the potential opponent has the right for an appealable decision and if an OP is requested, deciding in writing without holding an OP would amount to a violation right to be heard, be it in first instance or in appeal. There as well, further submissions have little chance to be admitted, and yet OP are necessary.
A party can request an amendment to the protocol of an OP. It can however not force the deciding body to amend said protocol. If the party requests as well OP, they will have for sole subject-matter the amendment of the protocol, then an OP has to be held, be it in first instance and in appeal. That the OP will, a priori, not really serve any purpose is however irrelevant.
Comments
4 replies on “T 1874/23 – Decision in writing in spite of a request for OP – “Dynamic interpretation” of the EPC”
If an absolute right is subject to restrictions, then by definition it is not “absolute”.
This is a very troubling decision.
I can agree with you that the present decision is a troubling one.
I can only reiterate my concern that such a decision should not have been taken by a single board but by the EBA.
With due respect to courts, the attitude of the present board reminds me of an old say: in front of a court, you are like on high sea. You are in the hands of god.
I have amended my comments with two examples in which an OP might not serve any real purpose, but should nevertheless be held.
Whenever a court or similar deciding body says that a text is a “living instrument”, I am always deeply skeptical. It’s too often a convenient justification for going way beyond (and sometimes even against) what the text’s drafters actually wrote. Some courts sometimes forget that if there are flaws in a statutory scheme, the solution is not to interpret the flaws away (whether “dynamically” or otherwise), but to amend the statutory scheme. That is a task for a legislative assembly, not a court. The question “who gets to decide?” is just as important as the question “was this decided correctly?”.
I fully agree with your comment.
The UPC is a prime example of what you describe. Before the UPC even opened, the presidium decided that the duties devolved to London would be distributed between Paris and Munich. I failed to find the lega basis for this decision.
The statutory scheme has later been adapted under Art 87(2) UPCA which was never intended to overcome the consequences of Brexit. It is even doubtful that the UK has actually left the UPCA as the latter does not contain any exit clause.
The only correct way to amend the UPCA would have been to renegotiate Art 7(2) UPCA and Annex II. This would have meant the need of a new ratification of the amended Art 7(2) UPCA. Time was there, be it only due to the delay caused by the Germen Constitutional Court. However, there were so many vested interests in a quick opening of the UPC, that this possibility has never been envisaged.
According to Art 9(1) UPCA, any panel of the CoA shall comprise 3 LQJs and 2 TQJs. And yet, for reasons of “efficiency”, the CoA has decided that in some cases it could decide with a composition of only 3 LQJs.
According to Art 9(2) UPCA, this possibility is only foreseen in case of actions concerning decisions of the EPO in carrying out the tasks referred to in Article 9 of Regulation (EU) No 1257/2012.
At a recent meeting I participated, I asked a LQJ what was the legal basis of this decision of the CoA. His answer was: ask Mrs Ria Kalden.
Where have you see that judges, not merely interpret, but amend on their own volition the legal founding text of their jurisdiction? This is even worse.
Once judges and the representatives of Contracting States behave like this, the rule of law has gone and the jungle is coming.