EP 2 628 080 B1 relates to a computer cluster arrangement for processing a computation task and a method of operating thereof.
Brief outline of the case
The OD revoked the patent as the requests were either not compliant with Art 123(2) or not admitted.
The OD also decided apportionment of costs against the proprietor.
An intervention in appeal was admissible but the requests on file were not compliant with Art 123(2) or 123(3). The revocation was confirmed, but the decision on costs was rescinded.
The decision is interesting as it deals with postponement of the OP before the BA.
The proprietor’s request for postponement of the OP in appeal
The proprietor requested postponement of the OP due to the sudden illness of its “lead counsel”. With a second letter on the next day, it was explained that the “lead counsel” had been involved in the drafting, examination and opposition phases and was involved in parallel infringement proceedings against the intervener. A medical certificate was provided.
The board’s decision on the postponement
According to Art 15(2) RPBA, a request of a party for a change of the date fixed for OP may be allowed if the party has put forward serious reasons which justify the fixing of a new date. If the party is represented, the serious reasons must relate to the representative.
There were pending proceedings before the UPC and the opponent and the intervener were against a postponement. The registered representative was not the person referred to as “lead counsel“.
Even though the participation of the latter was indeed announced in a previous letter, his role as “lead counsel” was not apparent from the file. Furthermore, the issues to be addressed at the OP were only Art 100(c)/123(2) and 123(3) and did not involve the consideration of any prior art.
The board noted that at the OP the proprietor was represented by two professional representatives. Neither indicated to have had any difficulty in presenting the proprietor’s case.
The proprietor’s request for postponement was thus rejected.
Comments
A “lead counsel” has at least to have made an appearance in the proceedings and not just be merely mentioned once.
One change in the valid RPBA was to remove the necessity that in the absence of the “lead counsel”, it should be explained why another professional representative could not step in.
In the present case, the “lead counsel” of the proprietor had never come forward, even if he could have done so, as he was himself a qualified representative before the EPO.
The rejection of the request for postponement was thus justified.
Comments
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