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EPO – Enlarged Board of Appeal issues reasoned decision on oral proceedings in Haar

01 Oct 2019

Enlarged Board of Appeal, G 2/19, decision of July 16, 2019, reported by Dr. Rudolf Teschemacher, Bardehle Pagenberg

In its decision T 831/17 of February 25, 2019, Technical Board of Appeal 3.5.03 referred questions to the Enlarged Board of Appeal (EBA) concerning the right to oral proceedings of an appellant who is not party to the proceedings and concerning the admissibility to hold oral proceedings in Haar, i.e. outside the seat of the EPO in Munich (see post of March 5, 2019).

In unusually streamlined proceedings, the EBA announced its decision at the end of the oral proceedings on July 16, 2019 with the following order:

1. A third party within the meaning of Article 115 EPC who has filed an appeal against a decision to grant a European patent has no right to have its request for an order that examination proceedings in respect of the European patent are re-opened for the purpose of removing allegedly unclear claims (Article 84 EPC) heard at oral proceedings before a board of appeal of the European Patent Office. An appeal filed in such a way has no suspensive effect.

2. Oral proceedings before the boards of appeal at their site in Haar do not infringe Articles 113(1) and 116(1) EPC.

On September 26, 2019 the reasoned decision was dispatched and the following day the EBA published a press release.

Not surprisingly, the Board confirms in pt. 1 of the order its previous decision G 3/14 stating that lack of clarity of the claims is a matter to be examined in grant proceedings and an alleged deficiency of the claims as granted cannot be objected to after grant of the patent. Allowing an extraordinary means of redress would run counter the intention of the legislator of the EPC 1973 and of the revised EPC 2000. As to the interests of third parties, the EBA points to the case law of the German Bundesgerichtshof holding that unclarities have to be resolved by an interpretation of the claims which may result in giving a term the most limited meaning.

Although concluding that a third party has no right to oral proceedings, the EBA considers it appropriate to deal with the question whether Haar is a proper place for oral proceedings. Whereas the Boards are not obliged to hold oral proceedings in a case of an obviously inadmissible appeal, they are not prevented from appointing them. Thus, the question is a relevant one. However, the Board sees no reason why the appellant’s right to be heard could be violated by appointing oral proceedings in Haar. Whereas appointing oral proceedings at a quite unusual place or date might have a connection with the right to be heard, the alleged violation of the right to be heard in oral proceedings slightly outside the boundaries of Munich in Haar did not exceed subjective deficits of convenience.

A copy of the decision can be read here.

A copy of the press release can be read here.