A new referral to the Enlarged Board raises this question...
The right to be heard under Article 113(1) EPC requires that parties involved in proceedings before the EPO have the right to present their arguments at an oral hearing. Previously, the vast majority of oral hearings were heard at the EPO’s headquarters in Munich or at the branch located in The Hague, which are the two locations set out in Article 6 EPC. However, in October 2017, the Boards of Appeal of the EPO relocated to Haar – a municipality located on the outskirts of Munich – and since then all oral proceedings before the Boards of Appeal have been held in this new location outside of Munich.
In a recent case before the Board of Appeal, T 831/17, the appellant argued that the EPC does not allow for the holding of oral proceedings in Haar and the scheduled appeal hearing should instead be transferred to the EPO’s headquarters in Munich. The Board decided to refer this question to the Enlarged Board, stating that this is a question of fundamental importance and an answer is required to ensure uniform application of the law. At the same time, the Board also referred questions concerning the need for a hearing in the event that the notice of appeal is prima facie inadmissible. The questions (translated from German) are as follows:
1# In appeal proceedings, is the right to an oral hearing under Article 116 EPC restricted if the appeal is prima facie inadmissible?
2# If the answer to Question 1 is in the affirmative, is an appeal against the decision granting a patent prima facie inadmissible in this sense, which Appeal has been filed by a third party within the meaning of Article 115 EPC and which has been substantiated by arguing that there is no alternative remedy under the EPC against a decision of the Examining Division not to take into account the third party’s objections concerning the alleged violation of Article 84 EPC?
3# If the answer to one of the first two questions is no, can the Board hold oral proceedings in Haar without violating Article 116 EPC, if the appellant complains that this location is not in conformity with the EPC and requests that the oral proceedings be moved to Munich?”
In the referring Board’s view, the answer on question 3 will depend on whether the EPO had the power to relocate the Board of Appeal to locations that are not mentioned in Article 6 EPC, or whether the interpretation of “Munich” in Article 6 EPC should include surrounding areas such as Haar.
The way that the questions have been presented means that it is possible that the Enlarged Board will not have to provide an answer to question 3, i.e. if the answers to questions 1 and 2 are both “yes”.
Questions 1 and 2 focus on clarifying the extent of the right to be heard in cases where the appeal is manifestly inadmissible and were raised in this case because the appellant was a third party who was appealing against a grant decision on the ground of lack of clarity. As would be expected, the initial remarks from the Board were that this appeal was prima facie inadmissible since the third party was not a party to grant proceedings and therefore not entitled to file an appeal. However, the Board considered that the case law was not settled on whether a party who filed a prima facie inadmissible appeal should still be granted the right to have its arguments heard at oral proceedings. The Enlarged Board’s answer to question 1 is therefore expected to provide some clarification on this point. Based on the comments made by the Board in T 831/17 at points 3.4 and 4.1, it appears that this Board is of the opinion that the answer to question 1 at least should be “no” and that a party should have the right to oral proceedings even if its appeal is prima facie inadmissible.
Relocating the Boards of Appeal to Haar was apparently carried out with the aim of increasing the organisation and managerial autonomy of the Boards of Appeal[1]. Although at the time of relocation the President of the EPO reasoned that the relocation of the Boards of Appeal outside of Munich was in line with the EPC, the Board in this case were not aware of these precise reasons and found the question sufficiently debatable so as to refer it to the Enlarged Board. Whether or not this means that the Boards will need to return to their original building in Munich remains to be seen and it will be interesting to find out how the Enlarged Board decide to settle this question.
For the time being, it is business as usual and we do not expect the existence of this pending referral to affect current or future scheduling of oral proceedings before the Boards of Appeal.
[1] See page 4 of the Annual report of the Boards of Appeal 2017 here.
