Sunday, 7 October 2012

Phoning the rapporteur? Think again ...

PatLit wonders what the
EPO's policy is with regard
to phone rage ...
In T 1251/08 Serial bus simulation/TERADYNE, 29 June 2012, a Board of Appeal of the European Patent Office (EPO) has given some handy, if largely negative, guidance with regard to interviews with a rapporteur.

In this decision -- an appeal against a decision of the Examining Division -- the appellant made requests for telephone interviews with the case's appointed rapporteur so that it could discuss with the rapporteur the allowability of certain amendments sought by the appellant and also for an explanation of the Appeals Board's provisional decision.

Said the Board, these requests had been turned down because one of the rapporteur's duties was to act on behalf of the Board in substantive matters and it was necessary for the rapporteur both to tell the other members of the Board and to put them in a position from which they could render an informed opinion on the action to be taken. Unless all of the Board's members were privy to all the evidence and arguments, there would be a breach of the principle of collective decision-making. The telephone interviews sought by the appellant could have led the rapporteur to take a position on an issue where a collective decision was required, or to commit the Board to a particular position without there first being any preliminary discussion.

There is however some good news for people who enjoy phoning the EPO: telephone interviews may be allowed if and to the extent that they assist a Board in conducting proceedings in an orderly manner. As the decision says at para.4:
"The board wishes to avoid giving the impression that it finds that it is never appropriate for parties in ex parte proceedings to telephone the rapporteur. Leaving aside the question of whether it is appropriate to file new requests on the day before an oral proceedings, the representative's telephone call on the day before the oral proceedings to advise the board that several late requests were being filed by fax assisted the board in conducting these proceedings in an orderly manner. The board was consequently at least in a position to ensure that the late submission was distributed to the whole board as soon as possible".

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