The application relates to a method and apparatus for moving display during a device flip.
Brief outline of the case
The ED refused the application. All requests on file were either considered lacking IS, adding matter or lacking clarity
The refusal decision was appealed by the applicant.
The appeal was eventually dismissed by the board.
In reply to the summons for OP, the applicant’s representative indicated that he would not be attending the OP. OP were then cancelled.
The decision is interesting in view of the board’s considerations relating to the cancelling of OP.
The board’s considerations
If the appellant in an ex-parte proceedings indicates that he will not be attending OP, the board is not obliged to hold OP in the absence of the party, i.e. with the board being the only participant.
If the appellant is legally required to be represented by a professional representative, an indication that the representative will not be attending equates to the applicant not participating in the OP.
The board referred to the CLBA, 10th edition, July 2022, III.C.4.3.2, and especially to T 671/12 and T 663/10.
Comments
We have now a further way of dealing with the announcement that a party will not appear at OP after having been summoned,
There lines of case law can be discerned.
The first, and longest, line of case law, is that started with T 3/90. T 3/90 was cited in a lot of other decisions. For this line of case law, announcing the non-appearance at OP, should generally be treated as a withdrawal of the request for OP.
A more recent line of case law has been started in T 245/19. In this decision, commented in the present blog, doubts were expressed that a declaration of non-appearance to OP can be considered as a withdrawal of the request for the OP. It was rather considered that the request for OP was ineffective.
The present decision, based on earlier decisions T 671/12 and T 663/10, represents a third line of case law. The declaration of non-appearance dispenses the board to hold OP.
Reimbursement of 25% of the appeal fee
If, according to the first line of case law, a declaration of non-appearance to OP is considered as withdrawal of a request for OP, 25% of the appeal fee should be reimbursed according to R 104(4,c).
Ways not having to reimburse 25% of the appeal fee
There is thus no surprise that boards come now and explain that either the request for OP is deemed ineffective or when a party declares its non-appearance to OP after requesting those, the board does not have to hold OP. With those two lines of case law, no reimbursement of 25% of the appeal fee is due.
Without reimbursement of 25% of the appeal fee OP have to be held in absence
If no appeal fee is to be reimbursed, then R 115(2) should apply and the board must meet on the set date and establish the party’s absence. Not holding OP, but keeping the full amount of the appeal fee is tantamount to unjust enrichment.
Neither R 115(2) nor Art 15(3) RPBA can be taken as a reason not to reimburse 25% of the appeal fee when no OP takes place after a party has declared not to appear or participate.
How to be sure to get reimbursed 25% of the appeal fee
The best possibility for parties not having the intention to participate to OP is to declare the withdrawal of their request for OP. This guarantees them a refund of 25% of the appeal fee, without any loophole for the boards to keep the full appeal fee.
https://www.epo.org/en/boards-of-appeal/decisions/t220263eu1
Comments
2 replies on “T 263/22 – In case of non-appearance, a board is not obliged to hold OP – In the absence of OP, 25% of the appeal fee should be reimbursed”
In my opinion, there still is a loophole, as the OP may also be initiated at own motion of the EPO/ the Board, not only at request of a party
@ Anonymous
I do not think that there is a loophole, as it is clear that OP can be summoned not only at the requests of the parties, but also at the request of a deciding body of the EPO, i.e. the RS, an ED, OD and a board.
Summons to OP by the EPO are most frequent in examination in order to avoid lengthy discussions. The more exchanges between applicant and an ED, the more confused the issues get. OP allow to put an end to this ping-pong.
In opposition and in appeal, requests for OP are quasi exclusively stemming from the parties. I cannot remember seeing an OD or a board summoning to OP on its own volition.
If a board does not hold OP after a party has requested OP and subsequently has indicated that it will not turn up, then the board has either to hold the OP in absence of that party, or to automatically reimburse 25% of the appeal fee. Some boards are indeed looking for loopholes allowing them not to reimburse 25% of the appeal fee. This is not correct.