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EPO – The location of the Boards of Appeal outside Munich – Enlarged Board of Appeal asked to decide whether the move to Haar was in conformity with the EPC

05 Mar 2019

European Patent Office, Technical Board of Appeal 3.5.03, T 831/17, decision of February 25, 2019

Reported by Dr. Rudolf Teschemacher, Bardehle Pagenberg

In the reported decision, the following point of law has been referred to the Enlarged Board of Appeal (EBA):

1. Is the right to oral proceedings in appeal proceedings limited if the appeal is evidently inadmissible?

2. If the answer to question 1 is yes, is an appeal against the decision to grant evidently inadmissible which has been filed by a third party within the meaning of Article 115 EPC and which has been based on the ground that the EPC does not provide for an alternative means of redress against a decision of the Examining Division not considering the third party‘s objections alleging a violation of Article 84 EPC.

3. If the answer to the previous question is no, is the Board of Appeal entitled to summon for oral proceedings in Haar if the appellant objects to this place as being not in conformity with the EPC and requests to relocate the oral proceedings to Munich?

(Original in German, translation by the author)

The Board communicated to the appellant that dismissal of the appeal may be expected since a third party which has raised objections under Article 115 EPC is not party to the proceedings and, for this reason, not entitled to appeal.

The question whether the location of the Boards of Appeal in Haar is in conformity with the EPC is only relevant for the Board’s decision on the appeal if there is a right to oral proceedings even if the appeal is evidently inadmissible. In this respect, the appellant submits that it has to have a right to appeal. Otherwise there would be a denial of justice against ignoring its objections under Article 84 EPC because of the limited grounds for opposition.

The appellant alleges an intolerable gap in the available remedies and aims at having this fundamental question clarified by a decision. Thus, it requested oral proceedings concerning the admissibility of the appeal. In reply to the summons issued by the Board for oral proceedings to be held at the Boards’ location in Haar, the appellant requested to relocate the oral proceedings to Munich since this is the seat of the EPO and Haar is not foreseen as a place for acts to be performed or proceedings to take place, differently from the Hague.

In G 3/97, OJ EPO 2000, 322, Request with a view to revision/ETA, the EBA took a very restrictive approach when asked to provide for an appeal not foreseen in the EPC, arguing that this was a matter for the legislator to decide. On the other hand, the EBA may be expected to consider the case law on Article 6 of the European Convention on Human Rights and Article 47 (2) of the EU Charter of Human Rights, both providing for a right to public oral proceedings. In this respect, one may say that oral proceedings may satisfy the purpose of clarifying legal issues concerning the admissibility of legal remedies, in particular if the evolution of the law is at stake, as the appellant argues.

The decision (in German) can be read here.