07.01.21

Gemini version available ♊︎

EPO Referral Case G 1/21: It’s Popcorn Time!

Posted in Europe, Patents at 7:57 am by Dr. Roy Schestowitz

The EPO shitshow

Summary: In the referral case G 1/21, proceedings are due to resume on 2 July 2021

At the EPO, proceedings are due to resume shortly in the case G 1/21. That’s less than 24 hours from now.

This is the controversial high profile referral case where the legitimacy of mandatory ViCo hearings without the consent of the parties is being challenged.

The proceedings were adjourned following a first mandatory ViCo hearing held on 28 May.

The next hearing – likewise by mandatory ViCo – is due to take place on Friday, 2 July.

In the meantime, the Enlarged Board of Appeal has issued the minutes [PDF] of the previous hearing of 28 May and an interlocutory decision [PDF] on the partiality objections discussed during that hearing.

At the same time, the appellant has filed its response to the comments of the President of the Office.

There isn’t really any new information in the minutes of the hearing of 28 May and the associated interlocutory decision merely confirms what was already suspected, namely the dismissal of the appellant’s partiality objections relied on formalistic “legal sophistry” which were used by the Enlarged Board to avoid any engagement with the substance of those objections.

“At the same time, the appellant has filed its response to the comments of the President of the Office.”The remainder of this update will focus on the response to the comments of the President of the Office submitted on behalf of the appellant by its representatives from the Munich-based law firm, Isarpatent.

The appellant’s written submission [PDF] begins by recalling that well-founded concerns exist regarding the conduct of oral proceedings by videoconference without the consent of the parties. Such an approach is incompatible with the right to oral proceedings as enshrined in Article 116 (1) EPC.

Reference is made to the interlocutory decision T 1807/15 [PDF] which triggered the referral procedure G 1/21. This interlocutory decision provides a thorough analysis of the different approaches for interpreting the term “oral proceedings” as used in Article 116 EPC. These approaches include considering the case law of the Boards of Appeal, literal and systematic interpretations, supplementary means of interpretation such as the Travaux preparatoires of the EPC, teleological interpretation, subsequent agreements and dynamic interpretation.

None of these approaches leads to an interpretation of Article 116 EPC which would support the proposition that it is lawful to hold oral proceedings by videoconference without the consent of the parties.

According to the appellant’s representatives, the comments by the President of the Office fail to dispel the aforementioned concerns.

“None of these approaches leads to an interpretation of Article 116 EPC which would support the proposition that it is lawful to hold oral proceedings by videoconference without the consent of the parties.”The appellant’s written submission proceeds to recapitulate the approaches for the interpretation of the term “oral proceedings” as used in Article 116 EPC based on literal and systematic interpretation, supplementary means of interpretation, teleological interpretation and dynamic interpretation.

Reference is made in this regard to an amicus curiae brief submitted by VPP [PDF] – a German association of “intellectual property experts” – together with an associated legal opinion authored by Alexandra Speer and Ronja Schregle of the Department of Corporate and Intellectual Property Law at the Technical University of Munich School of Management.

The appellant’s representatives also address the question of “dynamic interpretation” which is a relatively recent addition to the Enlarged Board’s repertoire of legal fudge techniques. Here the appellant argues that it is doubtful as to whether “secondary legislation” (in the form of an amendment to the Rules of Procedure of the Boards of Appeal) could provide “a valid ground for a dynamic interpretation limiting substantial procedural rights” which are anchored in the primary law of the European Patent Convention itself.

Specific reference is made in this regard to Article 164 (2) EPC which stipulates that “[i]n case of conflict between the provisions of this Convention and those of the Implementing Regulations, the provisions of this Convention shall prevail”. This provision “has to be taken as a limitation of the legislative powers of the Administrative Council”.

“…changes in member states’ authorities and judicial systems do not go as far as holding videoconferences against the will of the parties to the proceedings or without their consent, not even in the exceptional circumstances of the coronavirus pandemic.”The appellant’s representatives also discuss the differences between proceedings before first instance examination and opposition Divisions and proceedings before the Boards of Appeal. Here it is explained that appeal proceedings are wholly separate and independent from the proceedings at first instance and their function is to give a judicial decision upon the correctness of a preceding decision taken by an administrative department.

In appeal proceedings the principle of party disposition is to be considered when summoning to oral proceedings. Thus, even if one would follow the President’s comments that the administrative character of proceedings before examining and opposition divisions must be taken into account in the interpretation of Article 116 EPC, such considerations cannot apply to judicial appeal procedures before the Boards of Appeal. Such a different interpretation is supported by the different legal principles underlying the appeal proceedings.

The appellant’s representatives also refer to “societal developments in the Contracting States, which might arguably justify adapting the interpretation of the term «oral proceedings’”. Here it is noted that the use and societal acceptance of videoconferencing technology has increased during the coronavirus pandemic.

“…if a party objects to oral proceedings being held using videoconferencing technology, the court cannot force the party to use that format.”However, changes in member states’ authorities and judicial systems do not go as far as holding videoconferences against the will of the parties to the proceedings or without their consent, not even in the exceptional circumstances of the coronavirus pandemic.

Section 128a of the German Code of Civil Procedure (Zivilprozessordnung), stipulates that courts can order proceedings to be held in the form of a videoconference. However, the court itself must sit in a courtroom, and the parties (or their representatives) are entitled to appear in the courtroom. Therefore, if a party objects to oral proceedings being held using videoconferencing technology, the court cannot force the party to use that format.

“…oral proceedings by videoconference without the consent of the party would violate the provisions of the German constitution.”According to a legal opinion [PDF] by Prof. Siegfried Broß – a former judge at the German Federal Constitutional Court and long-time critic of the EPO’s legal “no-man’s land” of Battistelli – oral proceedings by videoconference without the consent of the party would violate the provisions of the German constitution.

Reference is also made to an amicus curiae brief submitted by Meissner Bolte [PDF], major German law firm specialising in the area of “industrial property right protection” which has been highly critical of the EPO’s attempts to impose mandatory ViCo hearings.

The submission concludes by drawing attention to relevant decisions from national courts in Switzerland and France:

In Switzerland, the Federal Supreme Court (Schweizer Bundesgericht) recently decided that a lower court had no legal basis to order a video conference against the will of the parties. In particular, the Supreme Court ruled that it was not permissible to rely on the extraordinary situation resulting from the coronavirus pandemic as a justification for such measures.

In France, the Constitutional Court (Conseil d’État) decided that oral proceedings by videoconference without consent of the party amounted to “a serious and manifestly illegal infringement of … the right to a fair trial”.

In essence, the appellant’s position is that Article 116 EPC guarantees the right of the parties to be heard at in-person oral proceedings. Holding oral proceedings in the form of a videoconference without the parties’ consent is incompatible with the EPC and violates the legitimate expectation of a party to proceedings before the EPO that its well-established right to have oral proceedings in person will not be curtailed.

All in all, it seems fair to say that the appellant’s representatives have presented a compelling case in support of their position that “the question referred to by the Technical Board of Appeal 3.5.02 shall be answered in the negative”:

That is, the conduct of oral proceedings in the form of a videoconference is not 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.

Now it’s over to the Enlarged Board of Appeal to decide the matter.

“With proceedings due to resume at 9:00 on 2 July, it’s popcorn time, folks…”It remains to be seen whether or not the EPO’s highest judicial organ is capable of making a belated effort to assert its independence by acting in a manner that would go some way towards restoring public confidence in the integrity of the procedure.

The alternative is that – as many observers fear – the Enlarged Board will turn out to be a tame and submissive “lapdog” of Team Campinos.

With proceedings due to resume at 9:00 on 2 July, it’s popcorn time, folks…

EPO popcorn time
Popcorn time at the EPO as proceedings in G 1/21 due to resume.

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

Decor ᶃ Gemini Space

Below is a Web proxy. We recommend getting a Gemini client/browser.

Black/white/grey bullet button This post is also available in Gemini over at this address (requires a Gemini client/browser to open).

Decor ✐ Cross-references

Black/white/grey bullet button Pages that cross-reference this one, if any exist, are listed below or will be listed below over time.

Decor ▢ Respond and Discuss

Black/white/grey bullet button If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

DecorWhat Else is New


  1. IRC Proceedings: Wednesday, October 27, 2021

    IRC logs for Wednesday, October 27, 2021



  2. [Meme] False Choices and False Dichotomy Designed for Self-Harm

    The self-serving EPO surveys, which Benoît Battistelli and António Campinos design to justify their own policies, have severe flaws in them



  3. Links 27/10/2021: XOrg Server 21.1 and Makulu Shift Ubuntu Variant Released

    Links for the day



  4. Links 27/10/2021: Murena for /e/ and Red Hat Condemned for Its Nationalism/Racism

    Links for the day



  5. [Meme] EPO Presidential Surveys

    The 'social democracy' of Benoît Battistelli and António Campinos as demonstrated by a controlled survey (controlled by the subject of the survey, EPO governance)



  6. 'Shaping the New Normal' Survey at the EPO Got 5,554 EPO Staff to Participate, But It Was Controlled by Liars With an Agenda

    Last year’s EPO ‘study’ (hogwash about “quality” and other unscientific junk) was likely biased by virtue of autocrats controlling it and exploiting it for nefarious agenda and brainwashing of national delegates. The Staff Union of the EPO (SUEPO) has a new survey in the making.



  7. Many of the National Delegations (or Delegates) in the EPO's Administrative Council Have No Understanding of What They Vote on

    One must consider the possibility that ignorance or gullibility (which lack of qualifications may entail) possibly became a contributing factor — malice and bribery aside — in systemic failure of the EPO’s governance



  8. The EPO’s Overseer/Overseen Collusion — Part XXV: The Balkan League - Fresh Blood or Same Old, Same Old?

    We take stock of "captured states" that voted in favour of unlawful "Strike Regulations"



  9. IRC Proceedings: Tuesday, October 26, 2021

    IRC logs for Tuesday, October 26, 2021



  10. Beatriz Busaniche Speaks Up in Defense of Richard Stallman

    Beatriz Busaniche sent us this comment in July 2021. She wrote it originally in Spanish. Here are both the original text and our translation to English.



  11. Links 26/10/2021: SUSE Linux Enterprise Micro 5.1 and Multi-Distro Benchmarks

    Links for the day



  12. Links 26/10/2021: Vulkan 1.1 Conformance for Raspberry Pi 4 and Tor Browser 10.5.10

    Links for the day



  13. [Meme] Sounds Legit

    When not cheating on the wife, the EPO‘s “doyen” cheats in the exams and makes it into the epi Council, in effect working “[t]owards a common understanding [sic] of quality” with “patent attorneys nominated as “assessors” by the EPO, epi and BusinessEurope” (notorious lobbyists for dictators, litigation, and monopolies, neither business nor science)



  14. [Meme] Mayoral Patent Office Chief

    As it turns out, political 'double-dipping' isn't just a thing in North Macedonia, Austria, and EPOnia



  15. Romania's Patent Office (OSIM): Nine Different Chiefs in Just Eight Years

    The Romanian State Office for Inventions and Trademarks (OSIM), being the equivalent of the U.S. Patent and Trademark Office (USPTO) in the sense that it covers both patents and trademarks, is a very flaky institution with no shortage of scandals; for our English-reading audiences we now have a summary of a decade’s worth of blunders and leadership changes



  16. The EPO’s Overseer/Overseen Collusion — Part XXIV: The Balkan League - Romania

    Romania’s patent office has been in flux this past decade, occasionally led by people with no relevant experience, but rather political connections (like EPO President António Campinos) and sometimes forged documents and fake degrees



  17. IRC Proceedings: Monday, October 25, 2021

    IRC logs for Monday, October 25, 2021



  18. [Meme] “Social Democracy” at the EPO

    Some comments on the current situation at the European Patent Office from Goran Gerasimovski, the new EPO Administrative Council delegate for North Macedonia and Social Democratic candidate for mayor of Centar (a municipality of Skopje)



  19. [Meme] António Campinos Visits the OSIM

    António Campinos visits OSIM Director-General Ionel Muscalu in February 2014



  20. [Meme] [Teaser] Meet the President

    Later today we shall see what Romania did for Battistelli



  21. Links 26/10/2021: Latte Dock 0.10.3 and Linux 5.15 RC7

    Links for the day



  22. Gemini Protocol's Originator: “I Continue to Care About This Project and I Care About the Community That Has Formed Around It.”

    'Solderpunk' is back from a long hiatus; this bodes well for Geminispace, which grew fast in spite of the conspicuous absence



  23. Bulgarian Like Bavarian Serfdom

    Bulgarian politics seem to have played a big role in selecting chiefs and delegates who backed Benoît Battistelli‘s unlawful proposals, which treat workers almost like slaves and ordinary citizens as disposable ‘collaterals’



  24. The EPO’s Overseer/Overseen Collusion — Part XXIII: The Balkan League - Bulgaria

    Today we examine the role of Bulgaria in Benoît Battistelli‘s liberticidal regime at the EPO (as well as under António Campinos, from 2018 to present) with particular focus on political machinations



  25. Links 25/10/2021: New Slackware64-current and a Look at Ubuntu Budgie

    Links for the day



  26. Links 25/10/2021: pg_statement_rollback 1.3 and Lots of Patent Catchup

    Links for the day



  27. Microsoft GitHub Exposé — Part III — A Story of Plagiarism and Likely Securities Fraud

    Today we tread slowly and take another step ahead, revealing the nature of only some among many problems that GitHub and Microsoft are hiding from the general public (to the point of spiking media reports)



  28. [Meme] [Teaser] Oligarchs-Controlled Patent Offices With Media Connections That Cover Up Corruption

    As we shall see later today, the ‘underworld’ in Bulgaria played a role or pulled the strings of politically-appointed administrators who guarded Benoît Battistelli‘s liberticidal regime at the EPO



  29. IRC Proceedings: Sunday, October 24, 2021

    IRC logs for Sunday, October 24, 2021



  30. Links 25/10/2021: EasyOS 3.1 and Bareflank 3.0

    Links for the day


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts