EPO Boards of Appeal Staying Put in Haar

18 July 2019

In March of this year the Board of Appeal in decision T0831/17 referred the following questions to the Enlarged Board of Appeal:

1. In appeal proceedings, is the right to oral proceedings under Article 116 EPC limited if the appeal is manifestly inadmissible?
2. If the answer to the first question is yes, is an appeal against the grant of a patent filed by a third party within the meaning of Article 115 EPC, relying on the argument that there is no alternative legal remedy under the EPC against the examining division's decision to disregard its observations concerning an alleged infringement of Article 84 EPC, such a case of an appeal which is manifestly inadmissible?
3. If the answer to either of the first two questions is no, can a board hold oral proceedings in Haar without infringing Article 116 EPC if the appellant objects to this site as not being in conformity with the EPC and requests that the oral proceedings be held in Munich instead?

The facts of this case are rather unusual and are summarised in our earlier news item here.

The oral proceedings before the Enlarged Board of Appeal concluded on 16 July 2019, and at the end of the oral proceedings the Enlarged Board announced its final decision. Specifically, the Enlarged Board rejected the first referred question as inadmissible, while the second and third referred questions were reformulated and answered as follows (our English translation, with the language in the EPO Communication having been provided only in German):

1. A third party within the meaning of Article 115 EPC, who has filed an appeal against the decision to grant a European patent, is not entitled to oral proceedings before a Board of Appeal of the European Patent Office regarding their request to reopen examination proceedings to remove allegedly unclear claims (Article 84 EPC). An appeal filed in such a way does not have suspensive effect.
2. Oral proceedings of the Boards of Appeal at their location in Haar do not contravene Articles 113(1) and 116(1) EPC.

The reasoning of the Enlarged Board of Appeal is not yet available. This will be provided in due course in the written decision. However, the Enlarged Board may have felt it appropriate to announce its final decision immediately (which does not normally happen), in order to allay any concern there may have been about the possibility of a sudden need for the Boards of Appeal to move back to central Munich. Thus, for the time being at least, it seems the Boards of Appeal will be staying put in Haar.

Separately, point 1 of the EPO’s announcement is not an encouraging sign for any third party wishing to seek recourse by appealing the decision to grant in the situation where an objection of lack of clarity was made unsuccessfully in pre-grant third party observations, although the exact position here will not become clear until the Enlarged Board’s reasoning is available.