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Case Law of the Boards of Appeal

 
 
a)
Illness and other medical issues 

In T 275/89 (OJ 1992, 126) the board considered that the illness of a duly represented party was not a sufficient reason for postponing appointed oral proceedings unless the party who was ill needed to be present. A request to change an appointment could only be allowed if unforeseen, exceptional circumstances had arisen, which either made oral proceedings impossible (such as a representative's or unrepresented party's sudden illness) or could have a decisive impact on the course of the proceedings (such as unforeseen unavailability of an important witness or expert), followed in T 1923/06.

In T 1212/04 the board held that the generally accepted principle that serious illness was a sufficient reason for postponing the date for oral proceedings could not be applied to the illness of the inventor designated in the application, since the appellant had failed to give any reasons why the inventor's presence at the oral proceedings was necessary or even indispensable.

In T 1067/03 the representative requested that the oral proceedings be postponed because of a prior appointment for a medical operation. The representative said that his client was opposed to a change of representative on the grounds that, in addition to the appeal in question, a further opposition and a patent infringement case were pending which together formed an intricate ensemble. In the board's opinion, these circumstances justified postponing the oral proceedings.

In T 1505/06, three days before oral proceedings before an opposition division, the appointed representative of the proprietor fell ill, and postponement of the oral proceedings was requested. At the start of the oral proceedings, the replacement attorney again requested that they be postponed due to the illness of the appointed representative. The opposition division refused the request. The board noted that the request for postponement contained all the elements necessary to allow the opposition division to decide whether or not to postpone the oral proceedings. The factors that the opposition division would have to weigh up include the proximity of the filing of the request to the oral proceedings, the complexity of the case, the availability of an alternative representative capable of preparing the case in the remaining time available and the effects of a postponement on any other party.

In T 1916/09 the representative requested postponement of the oral proceedings on the ground that the client was seriously ill and could not attend oral proceedings. The board held that the reason of serious illness was related to impediments concerning the representative and not, as in the present case, the client.