Brief outline of the procedure
The appellant/opponent appealed the OD’s decision to reject the opposition.
By letter dated 29.06.22, the opponent requested that the OP be held in person instead of by ViCo.
Opponent’s representative is based in Munich. Respondent’s/proprietor’s opponent is based in Wiesbaden.
The board decided on 21.07.2022 to hold the OP by ViCo.
The OP by ViCo took thus place on 26.07.2022.
The board confirmed the rejection of the opposition.
Opponent’s arguments for an in-person OP
The opponent had already indicated in the preparation of the OP that he would not agree to a video conference and maintained his objections also during the OP.
In its submission of 29.06.2022, the opponent referred to the fact that the current pandemic situation did not give reason to hold the OP as ViCo instead of in person. An exception to the holding of the OP in person within the meaning of G1/21 was not appropriate, as the actual circumstances did not make it necessary to hold the OP otherwise than in person.
At the OP, the opponent additionally argued that OP by ViCo was not an OP within the meaning of Art 116. He also repeated its argument that there was currently no longer an emergency situation within the meaning of G1/21, as there were no longer any restrictions on public life. The Corona virus was now to be regarded as a general risk of life, which was also proven by the fact that he personally was not aware of any severe courses of the disease. Therefore, there was no understandable reason not to hold the OP in person.
The opponent also complained that due to the poor sound quality of the proprietor, the OP by ViCo were more strenuous than in-person OP. In addition, a ViCo did not make it possible to capture emotions in the faces of the Board members.
The Boards position
For the board, the possibility to hold ex-officio OP as a ViCo is explicitly provided for in Art 15a RPBA20.
The board also added that OP by ViCo is to be regarded as OP within the meaning of Art 116, as the EBA decided in G1/21 in section C.3 (“Interpretation of Article 116 EPC”, in particular paragraph 30).
For the board, the question to be answered here is therefore whether the OP could be held as a ViCo against the opponent’s will.
The board reminded of the Headnote of G 1/21 in which it is stated that during a general emergency impairing the parties’ possibilities to attend in-person OP at the EPO premises, the conduct of OP before the boards of appeal in form of a ViCo was possible even if a party disagreed.
The board agreed with the opponent that its representative could have been granted access to the Isar building (where the OP were initially scheduled) – under the access conditions applicable there.
In the Board’s view, the circumstances in the present case justify not holding the OP in person.
As the EBA noted in decision G1/21 (point 49 of the grounds), such circumstances “should relate to restrictions and impediments preventing a party from attending OP in person at the EPO’s premises. In the case of a pandemic, such circumstances may include general travel restrictions or interruption of travel connections, quarantine requirements, access restrictions at EPO premises and other health-related measures to contain the spread of disease.”
The board noted that it was not disputed by the opponent that in the weeks before the OP the number of new infections in the Munich region had steadily increased – as was also emphasised in the Board’s decision of 21.07.2022. The risk of infection of one of the parties by holding the OP in person was therefore relatively high.
In the Board’s view, this risk constituted an aggravating circumstance which objectively prevented a party from attending OP in person.
In the Board’s view, contrary to the opponent’s assertion, an infection with the coronavirus cannot be regarded as a harmless disease, but may, on the one hand, result in a protracted loss of working capacity on the part of the person concerned. On the other hand, severe, sometimes even life-threatening courses cannot be ruled out – even if the representative of the opponent is not aware of any such cases in his personal environment.
The avoidance of direct contact and thus the minimisation of the risk of infection of one (or more) of the parties to the OP was the main consideration in the decision. The board found this advantage to be so decisive that it outweighed the disadvantages to the parties of OP by ViCo.
Thus, the board decided to exercise its discretion, for the protection of all parties (parties and members of the board), to hold the OP by ViCo even without the opponent’s consent.
As far as the inconvenience of OP by ViCo is concerned and the quasi impossibility to capture emotions in the faces of the Board members, the board noted that this may be correct in principle.
However, the EBA, in answering the question whether a videoconference should be considered equivalent to a face-to-face hearing, held in decision G1/21, in section C.4 (“Is a videoconference equivalent to in-person oral proceedings and, if not, is it a suitable format for conducting oral proceedings?”, in particular paragraph 43), that such complications, while annoying, did not violate the parties’ right to be heard.
In the context of the present case, in the event of momentary sound distortions, the Chair stopped the presenting party’s presentation and allowed the presenting party to repeat its argument so that all parties could grasp the completeness of each of the arguments presented.
The present decision is difficult to understand and to follow for a series of reasons.
When the board agreed with the opponent that its representative could have been granted access to the Isar building (where the OP were initially scheduled) – under the access conditions applicable there, the rest of the reasons are not convincing.
Even for the board, there was thus no proper impairment of parties to come to Munich and gain access to an EPO building.
With appropriate distancing of the participants and the board and with protective shields between them, as well if necessity arises, wearing masks, there was no reason not to hold OP in person at the end of July 2022.
The risk of infection of one of the parties by holding the OP in person might be relatively high, but the same risk exists when people go shopping, take public transport and/or go to the restaurant or the cinema. And in this respect the members of the BA are not different from other people in Munich or coming to Munich. It is difficult to follow why the general risk of life represented by Covid constituted an aggravating circumstance which objectively prevented a party from attending OP in person.
In all confined places a certain risk exists, but the sanitary authorities in Germany in general and Bavaria in particular see no reason to restrict contacts.
The premises of the EPO might benefit from an extra territorial status, but they are embedded in a city. It is difficult to understand why the sanitary conditions valid in general in the city could not apply to a building well anchored in it.
It is to be noted that the EPO has refrained from any official announcement of the end of the pandemic. One wonders why? It is most probably not innocent.
The headnote in G 1/21 made it clear that the impairment of parties plays an important role when depriving parties from the “gold standard” in matters of OP, cf. Reasons, Point 45.The board itself acknowledged that the representative of the opponent could obtain access to the Isar building. Therefore, discretion or not, it cannot be that a board decides on its own sanitary standard.
The RPBA20 have given the boards a great amount of discretion. The discretion in matters of OP should not end up with decisions going into different directions as it is already the case with deletion of claims or combination of claims as granted.
In T 2341/16, commented on this blog, OP were cancelled after the announcement of the applicant that he would not be present at the PO. Prior to this announcement the BA refused to hold an OP by ViCo and applied the gold standard in matters of OP as foreseen in G 1/21.
In T 1708/19, commented on this blog, OP took place on 30.06.2022. End of June was just the period in which the present board considered that the infection rate has increased drastically. This did not withhold the board in T 1708/19, which must also have been aware of the increasing number of infections, to hold OP in person.
In T 2526/19, not commented in this blog, the board made clear that it would still summon to OP by ViCo as it was of the opinion that Art 15a RPBA remains applicable without any qualification to “these and future appeal proceedings”.
Art 15a is also one of the reasons why the present board decided to hold the OP by ViCo.
The problem lies manifestly in Art 15a(1) RPBA20.
The question at stake is thus the following: in view of the divergent decisions of the boards in matter of OP in person or by ViCo, would it not be better to:
- Establish a mechanism by which, the EPO in general and the BA in particular, aligns itself with the sanitary requirements in places where the EPO has offices?
- Revise Art 15a(1) to bring it in line with the reasons given in G 1/21?
The discretion given to the BA in matter of form of an OP should not end up in a lottery depending on which board an appeal arrives.
However concern remains that there is no legal basis in the EPC for allowing the deciding body not to sit together when deciding on the fate of an application, patent or opposition, cf. Art 15(3) RPBA20.
When looking at Art 125 and what is happening in contracting states, it difficult to see that this Art 125 could cover the present practice.