The applicant appealed the refusal and requested that OP to be held by ViCo.
In a letter received on 01.04.2022 the applicant/appellant referred to the Covid-19 infection rates in the United Kingdom and in Munich and requested that the OP be held as a ViCo.
In a communication dated 11.04.2022 the board noted that there seemed to no longer be any official limitations or impairments affecting the appellant’s ability to attend oral proceedings in person. Hence the board was not convinced by the appellant’s arguments and still intended to hold the oral proceedings in person.
On 13.05.2022 the appellant’s representative indicated that the appellant would not be represented at the OP. The board then cancelled the OP and decided in writing.
It is interesting to note that the decision of holding the OP by ViCo is only mentioned in “Facts and submissions” and no word about it is lost in the decision itself.
After the appellant had declared that he would not attend the OP in person, it was legitimate for the BA to cancel the OP and to decide in writing.
The appellant had been informed in a communication about the objections of lack of IS by the board.
The refusal was confirmed.
It seems thus that a board has decided that the pandemic has ended and that the representative, even coming from the UK, was not any longer impaired in attending in-person OP.
The board thus applied the “golden standard” for OP as defined in G 1/21.
It is interesting to note that there is no communication of the EPO or of the chair of BA that the pandemic period has officially ended for the EPO and its BA.
I wonder when such a communication will be issued.
The present decision is in contrast with T 2526/19. In this decision the BA made clear that it would still summon to OP by ViCo as the for the board, Art 15a RPBA remains applicable without any qualification to these and future appeal proceedings.
In other words this board intends thus to ignore the “golden standard” for OP defined in G 1/21.
If the “golden standard” for OP before the BA is in-person OP, it is difficult to understand why this standard is not valid to OP before first instance divisions. After all, Art 116 does not make any difference between instances when it comes to OP.
I will refrain from any comment about OP before first instance divisions as it appears clearly that the reasons for holding OP by ViCo are not directly related to the pandemic. The pandemic rather appears to have been an opportunity to amend the workings processes at the EPO. Whether those amended procedures find a basis in the EPC is also a question worth asking.
Last but not least, I fail to find in the EPC a legal basis for allowing the deciding body not to sit together when deciding on the fate of an application, patent or opposition.
When looking at Art 125 and what is happening in contracting states, it difficult to see that this Art could cover the present practice.