The patent relates to a dosing system for metering the release of preparations inside a washing machine.
Brief outline of the procedure
The OD decided that claim 13 as granted lacked IS over D1=EP 0 611 159 (Not in the EPO/ISR).
The patent was maintained according to AR1 consisting of claims 1 and 14 as granted.
The opponent appealed the maintenance of the patent according to AR1.
The board held that claim 1 as maintained lacked IS due to partial problems. AR 1-4 were also lacking IS.
The patent was thus revoked.
The case is interesting in the way the board decided on the form of of OP.
Form of the OP
The opponent requested OP in person and the proprietor requested OP by ViCo.
The proprietor’s position
To support its request by ViCo, the proprietor argued that the ViCo format of was appropriate as it saved energy and other resources by eliminating the need for travel. The proprietor also pointed out that in previous ViCos before ODs and BAs, it never had the impression that the ViCo format had resulted in the discussion of the relevant case being curtailed or otherwise impaired in any way relevant to the decision.
The board’s position
the board decided to schedule the OP as in-person OP.
In its letter of 21.02.2023 2023, the opponent indicated that it also preferred this format.
In the board’s view, it is only in exceptional circumstances that the proprietor’s request for OP by ViCo can be granted against the opponent’s right to have OP in the optimal format of an in-person OP. The board referred to G 1/21, para. 45.
As such exceptional circumstances, the EBA mentioned restrictions and obstacles preventing a party from attending oral proceedings in person at the EPO’s premises, see G 1/21, para. 49. From today’s perspective, these are not likely to exist on 23.05.2023 and were not also not invoked by the proprietor.
This view has, in the meantime, also been expressed in the decision T 2432/19, see Grounds, Point1.
The proprietor did not raise any objection the board’s view after receiving the communication. Nor did any restrictions or impediments arise which would have prevented a party from attending the OP in person at the EPO’s premises. This fact was ultimately also demonstrated by the presence of the representatives of both parties at the OP.
The board therefore had no reason to deviate from its intention expressed in the communication under Art 15(1) RPBA20 and conducted the OP in-person.
The present board did not follow this line of reasoning and endorsed T 2432/19, which was commented on this blog.
The present decision is, like T 2432/19, to be welcomed as it applies the gold standard in matters of OP in the absence of any impairment for the parties in participating to OP before the boards on the premises of the EPO.
The existence of diverging decisions like T 618/21, T 758/20 (all stemming from the same board), illustrates one of the problems which have arisen with the RPBA20.
The discretion given to the boards is extremely large and leads to diverging decisions in procedural matters. It gives the bad impression that procedural matters have become a kind of lottery. This is not acceptable for the parties as they need coherent and reliable decisions in procedural matters. The form of OP should not be determined by the convenience of a board.
Unless G 1/21 is set aside by a new decision of the EBA, the boards should abide by Art 21 RPBA20. I am however not in favour of a “dynamic interpretation” à la G 3/19 of G 1/21.
An alignment of Art 15a(1) RPBA21 with G 1/21 seems in any case overdue.
At least, limits to the discretion given to the boards should be incorporated in said Art 15a(1) RPBA20 and all Articles of the RPBA giving a discretion to the boards in procedural matters.
On the procedure
In the present case, the board set aside the decision of maintenance in amended form and revoked the patent. A short comparison between 2022 and 2023 shows that, at least for the first half year of 2023, the situation has degraded. Whilst in 2022, roughly 44% of decisions of ODs were set aside, the figure for 2023, for the first half year, is well over 55%.
It is also interesting to note that the ISR established by the EPO did not mention D1. For the OD claim 13 of the patent as granted was lacking IS over D1, and for the board D1 was also CPA for claims 1 and 14 as granted. D1 bears the same classification, D06F 39/02, as the granted patent. The IS was carried out in D06F, EPO-Internal.
The number of cases in which relevant documents are in the search files of the EPO but are not retrieved during the search is very high. I am not putting the blame on any person, but this finding calls for investigation.