CASELAW-EPO - reviews of EPO Boards of Appeal decisions

T 2303/19 - Format of oral proceedings – OP by ViCo refused by the BA

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The patent relates to the U and results from a divisional application of EP 07861777/EP 2 086 581

Brief outline of the case

The patent was revoked by the OD.

The proprietor appealed the decision and requested OP by ViCo.

The opponent did not consent to this request and suggested a mixed mode format.

The proprietor indicated that if the hearing were to take place in mixed mode the proprietor’s representative would attend in person, and asked for the proprietor’s in-house counsel to attend remotely.

The board decided to hold the OP in person.

The OP took place at the premises of the EPO on 07.12.2022.

According to the minutes of the OP, the accompanying person was attending by video-link.

Claim 1 as granted lack IS over a series of documents with D9=US 4,500,512 as CPA, not in the ISR + a series of documents also not in the ISR.

The board decided maintenance according to AR1 and remitted the case, inter alia, for adaptation of the description.

The form of OP

The proprietor’s position

The proprietor’s reasons for requesting that the OP take place by ViCo were two-fold.

Firstly, this format would facilitate attendance at the hearing by the appellant’s in-house counsel. Secondly, it would reduce the risk of any last minute travel disruption which may occur due to the uncertainty surrounding Covid-19 cases.

The board’s position

The Board agreed with the opponent that at the relevant time there were no Covid-19 related travel restrictions which would impair the parties’ possibilities to attend in person OP at the EPO premises, and that in person OP are for now the optimum format as expressed in decision G 1/21.

The Board also considered that the possible attendance of an accompanying person cannot determine the format of the OP.

The board thus decided that the OP would be held in person.


The decision is interesting in that the possible attendance of an accompanying person cannot determine the format of the OP.

From the minutes, it did not appear that the accompanying person addressed the board at any during the OP. A corresponding request under G 4/95 was not filed.  

It would be interesting to see what would have been the decision of the board if a request under G 4/95 would have been filed.

It is to be hoped that in this situation the accompanying person would not have been attending by video-link.

It is good to see that some boards of take G 1/21 to hart. They can only be encouraged to continue on this path. Other boards should follow the same path.

Subsidiary questions:

  • When will Art 15a(1) be adapted to G 1/21?
  • What is the legal basis for Art 15a(3)? This question also applies mutatis mutandis to first instance divisions.

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