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 ...


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!

D. X. Thomas67 said...

It is worth noting that the applicant Borealis Oy is a Finish company, so that the argument of the location of the company in Linz is not too convincing.
It is certain that with EPC 2000, i.e. BEST, Munich representatives have lost a bit of their privileged situation with respect to Oral Proceedings in examination/opposition held only carried in Munich.
But that's life. Should the Boards of Appeal be relocated somewhere else in order to insist on their independence, the same will be the case for appeals.
The argument of costs for the appellant has never convinced a Board to allow a request. The Boards acknowledge for instance that having an other representative to take over a case should the original representative not be able to come, is of no relevance to them, see for instance T 1608/10. Postponement was thus refused.