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Case Law of the Boards of Appeal

 
 
4.1.1 Legal provisions and notices

The practice for fixing the date of oral proceedings before the departments of first instance and the boards of appeal was published in a notice in OJ 2000, 456 ("the 2000 Notice"). More recently, the EPO's notice of 18 December 2008 (OJ 2009, 68) ("the 2008 Notice") adjusted the procedure for changing the date before the departments of first instance. For the current practice before the boards of appeal, the notice from the Vice-President DG 3 of 16 July 2007 (OJ SE 3/2007, p. 115) ("the 2007 Notice") is applicable and largely supersedes the 2000 Notice. These notices use much the same wording.

The change of date of oral proceedings can only be requested in case of "serious reasons" justifying the fixing of a new date, see point 2 of the 2007 Notice (boards of appeal) and point 2.1 of the 2008 Notice (departments of first instance), drawn from the 2000 Notice. The request must be filed as soon as possible after the grounds preventing the party concerned from attending the oral proceedings have arisen, and must be accompanied by a sufficiently substantiated written statement indicating these reasons. As far as the boards of appeal are concerned, a change of date for oral proceedings may exceptionally be allowed at the board's discretion under Art. 15(2) RPBA.

The notices give examples of serious reasons including "a previously notified summons [...]"; "holidays which have already been firmly booked"; and "serious illness". Grounds which are not acceptable are, for instance: excessive work pressure, or a summons to oral proceedings before the EPO or a national court notified after the summons in the relevant proceedings.

The 2000 and 2007 Notices (points 2.5 and 2.3 respectively) state that any request to set another date for oral proceedings should indicate why another representative cannot stand in for the one unable to attend (see point 4.1.4 below).

For the question of whether a request for postponement of oral proceedings can lead to a different apportionment of costs under Art. 104 EPC, see Chapter IV.C.7.2.2.