R 0001/14 21-01-2015

I. This petition under Article 112a EPC, filed on 2 January 2014 and accompanied by the payment of the associated fee, concerns decision T 518/10 of Technical Board of Appeal 3.3.01, posted on 10 and notified on 31 October 2013, by which it dismissed the appeal against the decision of the opposition division revoking European patent No. 1417211 (application No. 02753988.1). The petition is based on the ground that the petitioner/appellant's right to be heard was violated by the dismissal of its request for postponement of the date of oral proceedings before the board of appeal (Articles 112a(2 )(c) and 113 EPC). The subject-matter of the patent in suit is "Natural phospholipids of marine origin containing flavonoids and polyunsaturated phospholipids and their uses".

II. In the opposition proceedings, the opponents had contested the patent on the grounds of lack of novelty, lack of inventive step, insufficiency of disclosure and added subject matter (Article 100(a), (b) and (c) EPC). In its decision posted on 30 December 2009, the opposition division held that the main request and the first and second auxiliary requests, all filed with letter of 13 November 2009, complied with Article 123(2) and (3) EPC but did not disclose their subject-matter sufficiently for it to be carried out by a person skilled in the art (Article 83 EPC).

III. On 9 March 2010 the petitioner (proprietor) lodged an appeal based on the original main request and new first and second auxiliary requests, all filed with the grounds of appeal on 10 May 2010. With a letter dated 27 September 2012, it filed further analytical evidence.

IV. In a letter of 20 November 2012, the board summoned the parties to oral proceedings to be held on 9 April 2013, annexing a communication setting out its preliminary view of the case. On 21 February 2013 the appellant's representative requested postponement of the oral proceedings for at least two months because he had been summoned to three oral proceedings on three consecutive days, preventing him from adequately preparing each case. Furthermore, he cited an explosion at the appellant's production plant which had restricted contact with his client, thereby making it almost impossible to adequately deal with the present case. The opponents objected to a postponement, arguing that the representative had learned more than two months ago of both the oral proceedings scheduled on three consecutive days and the explosion in the appellant's plant, which had already occurred at the beginning of November 2012.

V. In a communication dated 6 March 2013, the board refused the appellant's request for postponement and maintained 9 April 2013 as the date for oral proceedings. After deliberation during the oral proceedings the board concluded that the main request and the first and second auxiliary requests contravened Article 123(2) EPC. Then, after discussion with the parties and after deliberation, the board decided to admit auxiliary requests 3 and 4, filed with letter of 8 March 2013, to the proceedings but refused to admit documents E55 to E60, filed by the appellant with letters of 27 September 2012, 8 March 2013, 3 April 2013 and 4 April 2013. During the discussion of admission of these documents to the proceedings, the appellant stated that it intended to file an objection under Rule 106 EPC if they were not admitted.

Then, sufficiency of disclosure in auxiliary request 3 was discussed. During this discussion, the appellant filed a new auxiliary request 4. After deliberation, the board concluded that auxiliary request 3 did not comply with the requirements of Article 83 EPC. As a consequence, the appellant withdrew auxiliary request 4 and filed an objection in respect of procedural defects. It read as follows:

The refusal of the request for postponement of oral proceedings in view of the explosion in the proprietor's facility and the refusal to admit documents E55, E56 and E60 into the proceedings, although filed at least four weeks before the oral proceedings represent a fundamental violation of our right to be heard and constitutes a procedural defect.

After discussion with the parties and deliberation, the board dismissed this objection raised under Rule 106 EPC.

VI. In its written decision, the board stated that, according to Article 15(2) RPBA, a request for postponement of the date for oral proceedings was within the discretionary power of the board and could be allowed only exceptionally, account being taken of the interests of the parties, the internal organisational burden on the board and the interests of parties in other appeal cases, since any postponement of a hearing could cause delay in other proceedings (see the examples given by the Vice-President of DG 3 in his notice concerning oral proceedings, Supplement to OJ EPO 1/2013, 68 to 69).

Furthermore, this notice stated that a request to fix another date should be filed as soon as possible after the grounds preventing the party concerned from attending oral proceedings have arisen. However, in this case, the appellant had filed its request for postponement only on 21 February 2013, although its representative had already known since December 2012 that he had been summoned to oral proceedings on three consecutive days. No satisfactory reasons had been provided to explain why he had not filed the request immediately, why he had requested postponement only in this case and why another representative covered by his law firm's general authorisation could not substitute for him.

Moreover, the board held that the tragic explosion in the appellant's plant at the beginning of November 2012 was not a convincing reason for postponement. It conceded that, after such a tragedy, patent matters might not be among the most pressing issues, but the appellant's general counsel had already received the summons to the oral proceedings scheduled for 9 April 2013 on 3 December 2012. If this date for oral proceedings had posed problems, a request for postponement should have been filed immediately. Finally, the board observed that the appellant's representative had made contact with his client on 20 February 2013, and no convincing reasons had been given to explain why adequate preparation for the oral proceedings as scheduled had been impossible, particularly since the board's communication sent with the summons had not changed the relevant legal and technical framework and it could therefore be legitimately expected that the appellant had previously made its complete case as required by Article 12(2) RPBA.

VII. In the reasons for its petition, the appellant cited only the ground that its right to be heard was violated by the dismissal of its request to postpone the scheduled oral proceedings. The ground that documents D55 to D60 were not admitted into the proceedings, included in its written objection, was not dealt with in the reasoned petition of 2 January 2014.

The petitioner (appellant) requests that

1. the decision under review be set aside, the proceedings be reopened, and the replacement of the members of the board of appeal who participated in the decision under review be ordered;

2. reimbursement of the fee for the petition for review be ordered;

3. oral proceedings be appointed in case the Enlarged Board is not minded to allow request No. 1.

VIII. In its submissions, the petitioner described in detail the course of the appeal proceedings and the factual basis for its petition, namely the far reaching consequences of the explosion in its production plant in Canada. The respondents had been wrong to argue that the petitioner could not have been prevented from dealing with patent matters after the tragic accident because it had dealt extensively with a large array of other patent matters, namely in Australia. In fact, these cases had largely been dealt with before the explosion.

The petitioner's representative had wanted to discuss the board's communication with the petitioner's general counsel on 4 December 2012 but the latter had not been in a position to prepare for the oral proceedings, because other issues had been more pressing at that time. The possibility of requesting a postponement had been discussed, as evidence would be required to support the requests made by the appellant. Although the petitioner's representative had sent reminder e?mails and attempted to reach his client over the many weeks that followed, they had had no further contact until 20 February 2013, when the petitioner gave the instruction to request postponement of the oral proceedings in order to allow sufficient time to prepare and to supply more information on the effect of the explosion. It had to be kept in mind that the general counsel was the only person responsible for dealing with patent matters and could do so only with the assistance of the inventor, Dr T. S.

In the petitioner's view, the board was wrong not to postpone the oral proceedings, because in refusing the request it fundamentally violated its right to be heard under Article 113(1) EPC. Pursuant to Article 15(2) RPBA, a change of date of oral proceedings may exceptionally be allowed at the board's discretion. But, when exercising its discretion, the board did not take into account the examples given in the notice of the Vice-President of DG 3 dated 16 July 2007 concerning oral proceedings before the boards of appeal (OJ EPO 2007, Special edition No. 3, p. 115).

In exercising their discretion, the boards should consider procedural economy, optimum use of resources and capacities, the public interest and the interests of the parties. But this was not done in this case: the board did not exercise its discretion properly, as only two weeks had been left for the petitioner to deal with the issues raised in the summons, i.e. from 20 February 2013, when contact between the petitioner and its representative had been re-established, to the date of final submissions (9 March 2013). Furthermore, there had not been enough time left to prepare for the oral proceedings. The respondents on the other hand had not presented any evidence that a postponement would have had a negative impact on them. Contrary to their submissions, the petitioner had prepared for the patent matters dealt with after the explosion before that accident happened. There had been no public interest in a prompt hearing as the board had not had a particularly busy schedule for dates in June (3 oral proceedings), July (3) and August (3).

Thus, it should have been straightforward to find another date at least two months after the originally scheduled hearing date. Instead, the petitioner had been forced to rush the submissions filed on 8 March 2013 and including additional evidence which the representative had had insufficient time to fully consider. Consequently, the board's decision not to postpone the oral proceedings was a fundamental procedural violation.