06.04.21

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One Week Since the EPO’s Boards of Appeal Came to a Standstill Due to Lack of Independence and Impartiality

Posted in Courtroom, Deception, Europe, Law, Patents at 1:36 am by Dr. Roy Schestowitz

EPO management has said nothing at all since then

EPO further extends pilot for opposition hearings by VICO
This did not age well

Summary: EPO “hearings by VICO” may be totally illegal (no matter whose consent is given) and there’s growing recognition that the Boards of Appeal cannot properly deal with such a question because the Boards of Appeal are basically controlled by those whose actions they’re entrusted to assess

LAST Friday was historically significant because in G1/21 (regarding ViCo/VICO) it became apparent that EPO tribunals had been rigged. The question is, how long for? How many cases (of lesser profile) were similarly tainted by lack of impartiality? JUVE and IP Kat covered it very quickly (the same day), followed WIPR[1] and a couple of law firms yesterday[2,3] (they promoted this in Web hubs for lawyers). Much will be said for weeks if not months to come about the full ramifications. It has been one week and EPO management has been eerily quiet. The EPO’s “news” section (warning: epo.org link) has been quiet since the month of May. Prior to the planned hearing the EPO wrote a lot about it and it even extended the notorious programme of dubious legality. There was an arrogant assumption the case would be a ‘slam dunk’ due to the stacking.

Related/contextual items from the news:

  1. EPO’s G1/21 videoconf hearing postponed – World Intellectual Property Review

    The much-anticipated review into the legality of making oral proceedings by video conference at the European Patent Office compulsory has been postponed.

  2. G 1/21: hearing on using ViCo postponed for entirely non-ViCo-related reasons

    Last Friday, the Enlarged Board of Appeal (EBA) heard the case on G1/21 “Oral proceedings by videoconference”. However, the hearing was postponed for procedural reasons before there was a chance to even start discussing videoconferencing (ViCo).

    It is a shame that this case is being held-up by procedural problems, but the EBA has moved quickly and the new hearing has been rescheduled for 2 July 2021.

    [...]

    The first issue discussed was whether new partiality arguments filed by the appellant a couple of days before the hearing were admissible. This was debated for several hours (away from the viewing public).

    The hearing went back into public view after lunch and the EBA announced that the new partiality objections were not admissible. However, the appellant then complained that some documents on file had only been provided to them a few days before the hearing, meaning they had not had time to review and respond to them. In the appellant’s view, this would violate their right to be heard under Article 113(1) EPC unless the hearing was postponed.

    After several more breaks, the EBA agreed to postpone the hearing and gave the appellant one month to review and respond to the late-delivered documents.

  3. Is this the end of ViCo before the EPO without consent of all parties?

    In the pending referral before the Enlarged Board of Appeal, G 1/21, there is posed an important question for all parties involved in oral proceedings before the EPO. Namely: Is the conduct of oral proceedings in the form of a videoconference compatible with the right to oral proceedings as enshrined in Article 116(1) EPC if not all of the parties to the proceedings have given their consent to the conduct of oral proceedings in the form of a videoconference?

    The referring question stems from T 1807/15 where despite both parties objecting to the use of video conferencing (ViCo) for the appeal in question, the Board held the oral proceedings by ViCo. At the oral proceedings on 08 February 2021, the appellant specifically requested that a question be referred to the Enlarged Board of Appeal (EBA) on this matter and before dealing with the substantive issues of the case, the Board considered it reasonable to seek clarification from the EBA, noting that it was “to avoid any procedural violation”.

    In 2020, oral proceedings were held by video conference only with consent of all parties. This was the EPO’s response to the coronavirus pandemic and is a change in practice that has generally been working well for those involved.

    On 15 December 2020, however, there was a Communication uploaded to the EPO’s website noting that from 01 January 2021, the Boards of Appeal may “conduct oral proceedings by VICO even without the agreement of the parties concerned”. This was followed by the introduction of new Article 15a RPBA which came into effect on 01 April 2021 relating to oral proceedings by ViCo.

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