Editorial
M. Névant (FR), Editorial Committee
Ha(a)rmless?
In its last meeting the Administrative Council of the EPOrg unanimously approved the revised Rules of procedure of the Boards of Appeal. A report on the main changes of the new Rules (compared to the existing ones) is available in issue 1/2019 of epi Information. An updated report can be found in the present issue. The revised Rules will enter into force on 1 January 2020, and are aimed –so we are told – “at increasing (i) efficiency, by reducing the number of issues to be treated, (ii) predictability for the parties and (iii) harmonisation”.
Hmmm…Not so long ago we were given the opportunity to attend oral proceedings in Haar, Getting there, on a grim and rainy day, was certainly an experience (we doubt if any member of the Administrative Council has ever arrived there by S-bahn!). As to the case the Board of Appeal had to deal with, all possible grounds for revocation had been raised in the first instance, and a number of requests were up for discussion. The Board did not deem it appropriate to discuss whether the requests were admissible (some had been late filed) but instead focused on one specific request and one specific ground for opposition. Oral proceedings concluded within two hours. This case might prefigure what will happen when the revised Rules apply: fewer issues will be treated, hence probably improving efficiency (at least from the standpoint of the Boards of Appeal). In the mid- to long term, a Board of Appeal might even be able to hold two (or more) oral proceedings on the same day! It remains to be seen, though, whether predictability and harmonization will actually result from the implementation of the new Rules. What is certainly predictable is that the number of requests filed in opposition proceedings will dramatically increase since patent proprietors will not want to leave any stone unturned. The net result is that part of the workload will shift from the Boards of Appeal to the Opposition Divisions. Given the huge difference between the opposition fee and the appeal fee, increasing the workload of the Opposition Divisions may not be so financially sustainable after all.
Going back to Haar (which, you will have noted, is not exactly our cup of tea), the Enlarged Board of Appeal has, in its wisdom, decided in case G 2/19 that holding oral proceedings in Haar does not violate Articles 113(1) and 116(1) EPC. As I write these lines the reasons for the decision of the EBA are not yet available so we can only but assume that the decision of the Administrative Council to move the Boards of Appeal from Munich to Haar was found to be compliant with Article 6(2) EPC which states that “the European Patent Office shall be located in Munich. It shall have a branch at the Hague”. By the same token, we assume that holding oral proceedings in Rijswijk or Berlin is also EPC-compliant.
On these thoughts we hope that our readers are enjoying a relaxing summer and wish a nice holiday to those who are about to take a break.
