Friday, 27 June 2014

EPO not moved by "change of venue" plea

Have you ever wished that your oral proceedings before the European Patent Office were held somewhere more convenient? If so, take note of Case T 1142-1112 Polyethylene composition for injection molding with Improved stress crack/stiffness and impact resistance relationship/Borealis Technology Oy, a Technical Board of Appeal ruling of 8 April 2014 . According to the decision's Catchword:
The question of the venue of oral proceeding is a matter of organisational nature which belongs to the management of the Office pursuant to Art.10 (2) EPC.

When not acceding to a request for holding oral proceedings in Munich instead of The Hague, the Examining Division does not take a decision but only expresses the way the EPO is managed.

Consequently, that issue is not subject to appeal, nor can the Board refer a question on the venue of oral proceedings to the Enlarged Board of Appeal.
The applicant, Borealis, was based in Linz (in Austria, but a convenient train ride from Munich), and its attorney was based in Munich, which would have made Munich a more convenient place from its point of view. The EPO was literally not moved. At 2.3.1. the Board said:
"If the Examining Division may decide on the location of oral proceedings on a case by case basis, then it would be obliged to justify its decision to refuse a request for oral proceedings in Munich on the basis of the provisions of the EPC, of the Rules or of the Guidelines and in consideration of the reasons given by the applicant. The reasoning on this issue would thus be part of the contested decision which would therefore be subject to appeal".
This blogger thinks that Borealis and others can face a lot more travel in time to come, with the new unitary patent system and unified patent court ...

1 comment:

Anonymous said...

This has come up before in T 933/10. Borealis and/or their attorney should surely have known this was going to be a quixotic effort!

http://www.epo.org/law-practice/case-law-appeals/recent/t100933eu1.html