M. Névant (FR), Editorial CommitteeM. Névant (FR), Editorial Committee

Fast (and furious?)

Not so long ago (read the editorial here) we anticipated that the day would come soon when a Board of Appeal would issue a decision in abridged form. That day has come! In decision T1687/17 of 9 January 2020, Board of Appeal 3.2.01 has taken advantage of the provisions of article 15(8) of the RPBA 2020 to issue what is probably today the shortest rationale ever by a Board of Appeal:
“Nach Überprüfung der angefochtenen Entscheidung schließt sich die Kammer der zutreffenden Begründung der Einspruchsabteilung an und verweist auf die Entscheidungsgründe 12.3 bzw. 13.3 bzw. 14.3 und 15.3.”
(in short, the Board of Appeal shares the conclusion of the Opposition Division as mentioned in reasons 12.3, 13.3, 14.3 and 15.3 of their decision).

We are inclined to say “fair enough” insofar as it appears that, in this case, the parties merely repeated during the course of appeal proceedings what they had said before the Opposition Division.

However, at the risk of repeating ourselves, increasing the productivity of the Boards of Appeal to meet the expectations of the Administrative Council of the EPOrg should not be done at the expense of the primary task of the Boards of Appeal which is – in our view – to develop case law. This, in fact, helps EPO examiners and professional representatives to reach a common goal, namely granting/obtaining quality patents.

Unfortunately, the RPBA 2020 seems to be a toolbox giving the Boards of Appeal many possibilities to avoid discussing what an invention is all about, i.e. first and foremost an advance in science. Why indeed bother embarking on a discussion of novelty and inventive step when a patent can be revoked on procedural grounds? We sincerely hope that the Boards of Appeal, in their wisdom, will make a cautious use of some provisions of the RPBA 2020.

As we were proofreading this issue before publication the following events unfolded:

  • The President of CIPA, Richard Mair, has been advised by the UKIPO CEO, Tim Moss, that the UK Government will no longer seek to participate in the Unitary Patent or Unified Patent Court system.
  • Due to Covid-19, the pre- and main EQE scheduled on 16.03-19.03.20 have been cancelled. Revised dates, if any, have not yet been determined.
  • For the same reason, the Board of epi decided that Committee meetings with attendance of up to 20 people should be held via videoconference until further notice. Regarding the C88 Council meeting scheduled for 11.05 - 12.05.2020 in Glasgow (see also below), the Board of epi will communicate its decision on 06.04.2020 on proceeding with the Meeting in the light of the situation and information available at that time.

We will endeavour to provide more input on these topics in the next issue.

On a last but hopefully more encouraging note, a new Council has been elected this year – the results for each constituency are presented right after this editorial. On behalf on the Editorial Committee, I would like to thank all past members for their work and contribution, and wish newly elected and re-elected members all the best for the coming 3-year term.