Key points
- On this blog, I sometimes say that if you need more time during the oral proceedings, you need to request a break or adjournment. The proprietor in this case did, and the adjournment was refused by the OD. The proprietor presents the issue in appeal, with the purpose of getting an auxiliary request admitted. The Board does not evade passing judgment on the conduct of the OD, seeing no error in it.
- The Board summarizes the precise conduct of the oral proceedings and gives a quite detailed analysis, to conclude that "At the oral proceedings before the opposition division, the appellant was given the opportunity to substantiate its request for an adjournment of the oral proceedings. In the board's view, the rejection of this request in the decision under appeal is justified by the fact that the appellant had been given sufficient opportunities to overcome the objections raised in the oral proceedings before the opposition division. The appellant was also given sufficient time to formulate a new request each time. Therefore, the board cannot see any violation of the appellant's right to be heard in the refusal of the request for an adjournment."
- The OD did not admit auxiliary requests 4-13 after having rejected auxiliary request 3B.
- "If the opposition division did indeed indicate to the appellant that it did not intend to admit any further requests after auxiliary request 3B-O, as argued by the appellant and possibly implied by the sentence "The proprietor was given one more opportunity to file patentable claims" in point 9.3 of the minutes, such a statement would indeed be inappropriate. However, in view of the fact that, as stated above, the appellant was given sufficient opportunities to overcome the existing objections, the board cannot see this as a violation of the appellant's right to be heard. If the appellant's argument were to be accepted, this would ultimately mean that the patent proprietor could prevent the opposition division from taking a decision by filing a series of new requests. Not only is there no legal basis for this in the EPC, it would also clearly run counter to procedural economy."
- This decision illustrates the importance of correctly "preserving the error" both before the OD and in the initial appeal submissions, to borrow USA civil procedure terminology, to ensure that the Board reviews whether the conduct of the oral proceedings involved a violation of Article 113(1) EPC or not, as is now necessary to get a decision on the merits of the request or attack affected by the (perceived) procedural irregularity in the first instance procedure.
- EPO T 0350/19
The link to the decision is provided after the jump, as well as (an extract of) the text of the decision.
source http://justpatentlaw.blogspot.com/2023/09/t-035019-od-refuses-to-adjourn.html
