A request to change the date of oral proceedings is allowable only if the party concerned can advance serious reasons which justify the fixing of a new date (see T 1080/99, T 300/04, J 4/03 and T 178/03). The request to fix another date must be filed as soon as possible after the grounds preventing the party concerned from attending the oral proceedings have arisen. It must be accompanied by a sufficiently substantiated written statement indicating these reasons (see OJ EPO 2009, 68; see also T 178/03) and appropriate evidence, where necessary.
Serious reasons to request a change of the date for oral proceedings may be, for instance:
– a previously notified summons to oral proceedings of the same party in other proceedings before the EPO, the Unified Patent Court or a national court or patent office
– for the same date or
– for the preceding or following day or
– for at least one of the two preceding or two following days where participation in the other oral proceedings requires travelling to or from are to take place on the premises of the EPO at a geographically distant location,
– serious illness,
– a death within the family,
– the marriage of a person whose attendance in oral proceedings is relevant,
– military service or other obligatory performance of civic duties,
– business trips which have been firmly booked before notification of the summons to oral proceedings,
– holidays which have already been firmly booked before notification of the summons to oral proceedings. In the case of holidays scheduled but not yet booked, the representative must indicate the circumstances (e.g. school holidays) which prevent the holidays from being rescheduled.
If the grounds for changing the date of the oral proceedings submitted by a party do not meet the above criteria, the division will inform the parties that the oral proceedings will take place as set out in the summons and annex a brief reasoning as to why in its view the criteria are not met.
The reasons that can be invoked to change the date only apply to those participants whose presence is essential to the oral proceedings, e.g. the representative or a witness.
If during the procedure substantive submissions were made by several representatives of a firm, an indication must be given why none of those who previously made such submissions can present the case at the oral proceedings, i.e. why the representative who cannot attend is essential or why the others are also unable to attend.
In opposition proceedings, in particular if more than one opponent is involved, a more strict approach may be applied to prevent a series of changes of date (see T 1102/03).
Grounds which, as a rule, are not acceptable are, for instance:
– a summons to oral proceedings before the EPO or a national court notified after the summons in the relevant proceedings,
– excessive work pressure.
As Mondays and Fridays are normal working days, oral proceedings will be scheduled for these days, too. The fact that this may necessitate travel at weekends is not a sufficient reason to change the date of the oral proceedings. The departments of first instance will however, circumstances permitting, try to be flexible where there is a request to change the starting time in order to enable the party to travel on the same day.