The patent relates to an inflatable pool.
Brief outline of the procedure
The opponent appealed the decision to reject its opposition.
During appeal an intervener joined the procedure.
Opponent and intervener had the same representative.
The board confirmed the rejection of the opposition and rejected the intervention.
The case is interesting in view of the board’s position with respect to holding OP in hybrid/mixed mode.
Request of the opponent and intervener on the form of OP
The OP was originally scheduled as in-person OP for 05.05.2023.
In a letter dated 02.02.2023, the representative of the opponent and of the intervener requested the holding of the OP in hybrid form, so that the representatives could attend the hearing in person and “other attendees” could attend it remotely.
The board’s position
In a communication pursuant to Art 17 RPBA20 dated 21.02.2023, the board informed the parties that, in spite of the opponent’s and the intervener’s request to hold the OP in hybrid form, it had decided to maintain the format in which the oral proceedings had been arranged on 12.12.2022, i.e. in-person OP.
The board held that under Art 15a(2) RPBA21, if OP are scheduled to be held on the premises of the European Patent Office, a party, representative or accompanying person may, upon request, be allowed to attend by ViCo.
The opponent’s and the intervener’s representative requested a hybrid format to allow the representatives to attend the hearing in person and “other attendees” to attend remotely.
In the board’s view, in the context of in-person OP, any such request should normally be granted only if the participation of the person for whom the access by means of ViCo technology has been requested is related to a person whose participation in the OP is relevant to the case, in particular to the decision to be taken at the OP.
In these proceedings, the opponent and the intervener were represented by professional representatives who would be attending the OP on their behalf. From the request filed on 02.02.2023, it was not apparent how the participation of additional “other attendees” was relevant to the case.
It was not even clear who these “other attendees” were. The board assumes that they may be persons linked to the appellant and the intervener.
It is entirely possible that submissions made by persons who are not professional representatives, such as “accompanying persons” within the meaning of Art 15a(2) RPBA21 are relevant for the decision to be taken.
The board might permit such submissions at oral proceedings but this requires a reasoned request to that effect, see G 4/95, as explained in the communication under Art 17 RPBA21 sent to the parties on 21.02.2023.
Absent any such request, the board saw no reasons which would outweigh the increased technical and organisational complexity caused by setting up and operating an additional parallel hybrid channel, including e.g. the exchange of submissions, while running in-person-proceedings at which all parties are already fully represented by the professional representatives present and in which all attendees may participate as well.
Therefore, the OP took place as originally summoned, i.e. in person.
The reasoning of the board refusing the mixed mode is interesting as it puts some limits to mixed-mode OP.
The board applied the “gold standard” as defined in G 1/21.
The board can be followed when it sets conditions for holding OP in a hybrid mode as it increases the technical and organisational complexity of the OP, but even if it makes life more difficult, it should be accepted by the board when the request appears reasonable.
After all, parties should have the choice of the form of the OP, but in the absence of any impairment to parties or their representatives coming to the EPO premises, OP by ViCo are clearly not the “gold- standard” and mixed-mode OP are the second best choice.
However, requesting OP in mix-mode so that “other attendees” can be remotely connected is not a good enough reason for holding a mixed-mode OP.
If in-person OP are scheduled and the representatives are present, the parties are properly represented.
In spite of the fact that accompanying persons are mentioned expressis verbis in Art 15a(2) RPBA21, the board’s considerations with respect to accompanying persons in the meaning of G 4/95 are not fully convincing.
As accompanying persons have no procedural right to be heard, the mere announcement of the possible attendance of accompanying persons should not lead to the acceptance of holding OP in hybrid/mixed mode. For the same token, simultaneous interpretation cannot be requested for an accompanying person.
In T 418/07 it was held that a request for interpretation which is manifestly only for the benefit of other parties not using the same language who would otherwise be at a disadvantage is not to be granted.
Applying this principle mutatis mutandis, requesting to hold OP in hybrid/mixed mode for accompanying persons or for the convenience of some parties, should not be allowed.
In view of the “gold-standard” for OP set in G 1/21, OP in hybrid/mixed mode should, in principle, only be allowed when the professional representatives of a party are clearly impaired in coming to the premises of the EPO.
As far as problematic aspects of hearing of witnesses by ViCo are concerned, I refer to my comments about T 423/22 on the present blog.