The patent relates to polyolefin gaskets for closures.
Brief outline of the case
The opponent appealed the rejection of its opposition.
The board confirmed the rejection.
The case is interesting in view of the obiter dictum of the board when it comes to the request for simultaneous interpretation by the representative of the proprietor.
The language of the patent was English, hence the OP would be held in English.
The request for simultaneous interpretation
.The proprietor requested interpretation into English should any party speak any different language at the OP before the board (letter of 20 April 2023: page 1, first paragraph). Subsequently, the opponent informed the board that they would speak German at said OP.
Simultaneous interpretation from German to English was organised by the board pursuant to R 4(5) for the OP and the parties were informed by EPO Form 3018, that translation from German to English had been arranged.
What happened at the OP?
At the beginning of the OP, the interpreters informed the board that they were not in a position to provide interpretation as the opponent’s representative did not have a microphone of the standard required by the Technical guidelines for OP held by videoconference to be found under www.epo.org/en/applying/european/oral-proceedings/proceedings/technical-guidelines.
Reference to these guidelines is made in Form 3011.2 as well as in a communication from the Registrar sent prior to the OP. The representative thereupon declared that he could speak either German or English and that this would make no difference to him.
Questioned by the Chairman, the representative further confirmed that he would not suffer from any disadvantage if he were to speak English and agreed to present his full case in English.
The board noted that it is indicated at the bottom of EPO Form 3018 that the parties are requested to inform the Board as soon as possible if there is any change that could affect the arrangements made, in particular if interpreting is no longer needed.
By doing so, the parties further follow the EPI recommendations, see “Recommendations of Council – Attendance and Use of Simultaneous Translation at Oral Proceedings”, section (2), revised at the C82 meeting held in Munich on 24 and 25 April 2017, currently available under: https://patentepi.org/en/epi-papers/recommendations-of-council.html
Unnecessary costs occurred
If the board is informed well in time unnecessary expenses can be avoided as well as an unnecessary preparation on the side of the interpreters who need to study the documents on file in advance. Arrangement of interpretation also involves further work for the EPO as the pool of available interpreters is limited and it cannot always be guaranteed that interpreters are available on a given date, with the consequence that OP may need to be cancelled if no interpreters are available.
Furthermore, the fact that the representative did not have the required technical equipment could have involved the need to reschedule OP. Also such rescheduling would have meant a waste of, actually limited, resources.
It appears to be a bare minimum for a qualified representative to insure that its equipment corresponds to the required standard. A test can also be carried out to insure this is the case.
In case of rescheduling due to improper technical equipment, the party having caused the postponement would most probably have to bear the costs for the new OP. In case of a ViCo, there are no travel or accommodation costs for the other party, but preparation costs would occur.
Working times for interpreters
Interpreters are contractually held to work from 9:00 to 18:00. They can, but are not obliged, in the absence of a further contract on the next day, stay up to 20:00, but then they will stop working.
Should the OP have to continue after 18.00 or 20.00, and only one day was scheduled, then the OP must be adjourned and a new date must be set according to R 115
When at the beginning of an OP it appears that interpreters are not be needed, they have the obligation to inquire with the linguistic service, whether they could be used elsewhere.
Interpreters are not paid for their preparation time, but only for the actual work. Their fees are due at booking, irrespective whether they work or not. In my experience, all interpreters I have met were always very well prepared.
Requesting a postponement of OP after having requested simultaneous interpretation is thus a no go.
Unnecessary costs – the basics
The facility to use another official language is as well not given for the mere convenience of a party. The general rule to provide, when requested, simultaneous interpretation into another official language of the EPO needs to be set against the principle of efficiency of the proceedings and the duty of all services of the EPO, including the boards of appeal, to observe the finances of the EPO. See also Guidelines E-V, 1.
R 4(5) mentions expressis verbis that the EPO will only provide at its own expense interpretation into the language of the proceedings if this is necessary.
In T 418/07, Reasons 4-6, it was held that a party which elects to use a language which is not understood by one of its own representatives or employees or an accompanying person cannot for that reason request a free translation.
In T 2696/16, Reasons 1.1, the board refused to provide simultaneous interpretation from German to English, for a second qualified representative for the proprietor, whilst the original representative had no need for interpretation.
In T 2422/10, Reasons 1.3, interpretation from German into the language of the proceedings, English, for the English-speaking German representative was refused by the board.
Examples of unnecessary and hence avoidable costs
It is not infrequent that interpreters are requested, whilst it is clear that they were not needed.
I have witnessed OP during which, in presence of interpreters, representatives having requested simultaneous interpretation, did not wear the headphones at disposal in the room for OP. The client did….
It has also happened that at 18:00 when the interpreters stop working, that the parties agree to continue the OP without the interpreters. This is the best proof that interpreters were not needed.
Interpretation for accompanying persons
As there is no right for an accompanying person to be heard before the EPO, no interpretation will be provided for an accompanying person, e.g. T 418/07 or T 2422/10, Reasons 1.4.
Beware at the UPC
There is a fundamental difference in respect of simultaneous interpretation costs between the EPO and the UPC.
Simultaneous interpretation can be requested at the UPC. However, at the UPC, simultaneous interpretation costs are costs of the procedure which will have to be borne by the losing party, albeit within some ceilings. The UPC will only bear simultaneous interpretation costs for the panel, not for the parties.
A representative acting in front of both institutions and not requesting simultaneous interpretation at the UPC, will, depending on the case, have difficulties in requesting simultaneous interpretation at the EPO.