EP 3 425 446 B1, relates to a method, device and computer program for virtually adapting of a spectacle frame.
Brief outline of the case
The patent was maintained according to AR3 and both opponents appealed.
Eventually the board decided revocation of the patent for added matter.
The case is interesting as the proprietor objected that the publicity of the OP before the board was not guaranteed.
An objection under R 106 was filed by the proprietor after rejection of the corresponding request, was as well rejected by the board.
The proprietor’s point of view
In the proprietor’s opinion, the organisation of the OP before the board did not comply with the principle of publicity.
The public was unable to find out that an OP would be held in the present case on 19.03.2025.
The public includes not only the “interested public”, who are interested in the present case anyway and may therefore have been informed of the date of the OP via the online file, but ‘everyone’.
Since the OP on 19.03.2025 had not been announced separately at the entrance to the building in Haar, but only together with four other OP of the proprietor, all of which were announced on 18.03.2025, and had not even been signposted at the entrance to the hearing room, the “general public” had not been able to attend the OP due to a lack of the necessary information.
This constituted a violation of the principle of publicity, which is part of the right to be heard under Art 113(1), according to which the proceedings must take place under public scrutiny.
This important legal requirement was not fulfilled by the fact that the date of the OP could be found in the public online file. The public could not be expected to “click through” all pending files to find out that OP in the present case would take place on 19.03.2025.
The board’s decision
As stated by the opponents at the OP, the date of the OP was easily accessible to the public in the online register.
At the reception desk in the building of the OP rooms, one was directed to the room in which this OP took place. By posting the OP date in the online file, the public had sufficient opportunity to inform themselves about the OP, in particular that the hearing would take place on 19.03.2025.
In the board’s opinion, this alone satisfies the principle of publicity.
In the opinion of the board, the inclusion of a corresponding notice in the online calendar of OP before the boards is not a prerequisite for compliance with the principle of publicity of OP.
Comments
The same problem arose in T 1713/22, cf. EP 3 425 446 B1, which ended with remittal to the OD for lack of N of claim 1 as granted over a document not mentioned in the ESR. The proprietor and one opponent were identical in both cases. In T 1713/22, the opponent submitted at the OP that the OP date was easily accessible to the public in the online file. The decision in matters of publicity of the OP was then identical.
In R 7/09 and R 4/17,the EBA held that a proprietor does no have to consult the register in order to download the notice of appeal and the grounds of appeal which were never notified to it. The is way from the absence of the mention of an OP in the online calendar of OP before the boards.
For the surplus, the EPO page relating to the online OP calendar of the boards of appeal contains the following disclaimer:
“The EPO would like to point out that the content of this database is intended for information purposes only and that no guarantee is taken for its completeness. It should be noted that OP may be cancelled at short notice. Interested parties are therefore advised to contact us to check that the OP are actually taking place”.
This is a further reason for considering that the proprietor’s request was unfounded from the start. The information of the “public” about OP in opposition and appeal is a service from the EPO which does not generate any rights. A qualified representative should be aware of this.
I participated in hundreds of OP, albeit in first instance, and it happened only very exceptionally that members of the “public” were present. Mostly the “public” consisted of qualified representatives. In view of their hourly rates, they were not present just for fun.
One wonders what could have motivated the proprietor, and its representative, to raise such a pointless and futile issue, and on top to raise an objection under R106. In most life situations, one has to behave reasonably , especially when there are no vested rights that can be invoked.
Comments
3 replies on “T 483/23 – Complaint about the alleged lack of publicity of the OP before the board – A pointless and futile objection”
I don’t think it is completely pointless. The Dutch Supreme Court had to explain the principles of publicity of the hearings in 2023, including the requirement to actually give advance notice to the public of upcoming hearings (ECLI:NL:HR:2023:658) based on inter alia Art. 6 ECHR and case law of the ECtHR (case nr. 27455/06). The Dutch Supreme Court had to correct the practice of the lower courts, which no longer met the requirements of publicity.
Dear Plu,
Thanks for this interesting information about a decision of the Dutch SC relying on Art 6 ECHR.
As an objection under R 106 has been filed by the proprietor, we will have to wait whether the proprietor will file a petition for review.
I still maintain my opinion. When you look at the case, the proprietor made every possible effort to have the oppositions, resp. the appeals, deemed not admissible, i.e. wiped out for formal reasons.
In view of the rather negative content for the proprietor of the board’s communication under Art 15(1) RPBA, I am inclined to consider that the alleged non-publicly announcing of the OP before the BA, was a last and desperate attempt to avert a negative decision by playing, once more, on formal aspects.
The publication of the OP on the home page of the boards is a service, not an obligation. The same applies to the publication on a monitor of the OP taking place on the premises of the EPO. When an OP is held by ViCo, the public receives upon demand a link allowing it to join the OP. This insures the publicity of OP before ODs and boards. I did not find in the EPC or in the Implementing Regulations an obligation to publish a list of all the publicly accessible OP at the EPO.
The situation is quite different as, for example, at a wedding. In France, a wedding has to be publicly announced in advance and the door of the room in which the wedding takes place has to remain open during the whole ceremony. If the door is closed, it represents a reason of nullity of the wedding. I do not think that the reasons for publicity are so important when it comes to OP at the EPO.
At a wedding, a member of the public might have reasons to oppose the wedding, at the EPO a member of the public has nothing to say and has to remain silent.
When it comes to the publicity of proceedings, the following exchange inevitably comes to mind…
PROSSER: But, Mr Dent, the plans have been available in the planning office for the last nine months!
ARTHUR DENT: Yes! I went round to find them yesterday afternoon. You’d hadn’t exactly gone out of your way to pull much attention to them have you? I mean, like actually telling anybody or anything.
PROSSER: The plans were on display.
ARTHUR DENT: Ah! And how many members of the public are in the habit of casually dropping around the local planning office of an evening?
PROSSER: Er – ah!
ARTHUR DENT: It’s not exactly a noted social venue is it? And even if you had popped in on the off chance that some raving bureaucrat wanted to knock your house down, the plans weren’t immediately obvious to the eye were they?
PROSSER: That depends where you were looking.
ARTHUR DENT: I eventually had to go down to the cellar!
PROSSER: That’s the display department.
ARTHUR DENT: With a torch!
PROSSER: The lights had… probably gone.
ARTHUR DENT: So had the stairs!
PROSSER: Well you found the notice didn’t you?
ARTHUR DENT: Yes. It was on display in the bottom of a locked filing cabinet, stuck in a disused lavatory with a sign on the door saying “Beware of the Leopard”.