Summary: The crisis of legitimacy inside the Boards of Appeal has caused today's hearing to be postponed, maybe indefinitely (pending a solution to this crisis/deadlock)

SO it finally happened!

"By extension, the credibility of any claims of independence for Boards of Appeal judges is now at historic lows (or worst since the kidnapping of Judge PC)."Stick a fork in it, it's done!

OK, as a quick recap, a few days ago we finished our 20-part series about G1/21. Rose Hughes and comments on her blog posts played a role in getting the scrutiny up to speed. Techrights threw a wrench (as did many others) and the kangaroo court sort of 'died', albeit it'll never acknowledge what caused it. By extension, the credibility of any claims of independence for Boards of Appeal judges is now at historic lows (or worst since the kidnapping of Judge PC).

In the words of Dr. Hughes (minutes ago):

The Enlarged Board of Appeal (EBA) has decided to reschedule oral proceedings for G1/21 due to a procedural technicality. The referral concerns the legality of conducting Board of Appeal oral proceedings by Video Conferencing (ViCo) without the consent of all parties. However, the substantive issues in the referral were not considered today. Instead, the EBA accepted a request from the Opponent for postponement of proceedings. The Opponent particularly objected that they had not been given sufficient time to consider the President's submissions on the referral, given that they had only received formal notification of these submissions a few days before the hearing.

G1/21: Case catch-up

The new rule of procedure of the Boards of Appeal (RPBA), Article 15a, was introduced earlier this year. Article 15a RPBA permits a Board of Appeal to hold oral proceedings by ViCo whenever "the Board considers it appropriate to do so". The rapid introduction of this new provision sparked considerable controversy, given that it permits Boards of Appeal to hold oral proceedings by ViCo even when one or more of the parties disagree. Whilst most commentators have accepted the necessity of ViCo proceedings during the COVID-19 pandemic, concerns were raised that access to justice before the EPO requires a party to have the right to put their case in-person.

The referral in G1/21 asks whether Article 15a RPBA is compatible with the right to oral proceedings as enshrined in Article 116(1) EPC. The referral itself stems from appeal of the opposition decision to maintain EP1609239 in amended form (T1807/15) (IPKat).

[...]

The EBA was clearly concerned that a decision on the legality of mandatory ViCo proceedings should not be unnecessarily delayed, given the potentially large number of affected cases. The Opponent was therefore asked how long they would require to consider the President's submissions. The Opponent responded that they would like at least 1 month. The EBA accepted this request, and oral proceedings will be rescheduled for June-July in order to allow the Opponent to make further written submissions.

It thus seems that, in the Enlarged Board's admirable attempt to provide legal certainty on ViCo proceedings as soon as possible, certain procedural rules have been overlooked. We will therefore have to wait a little longer to hear the arguments on the substantive issues of the referral. However, on the plus side, at least the parties will not have to travel all the way back to Munich to attend the rescheduled hearing...

Amy Sandys has also just commented on this:

At the beginning of 2021, the European Patent Office and EPO Boards of Appeal changed their practice. Previously, the office could only conduct oral proceedings via video with the consent of both parties.

However, from January 2021, the office made it possible for video proceedings to go ahead even without the consent of both parties.

The above aren't patent sceptics but maximalists. Maybe deep inside they worry about the very viability of these courts, which they wanted us to wrongly assume had operated smoothly and happily. There has been no Haar-mony there for a long, long time.

The Administrative Council needs to step in an examine what happened to EPO management under Benoît Battistelli's and António Campinos's regime. They clearly undermined the legitimacy of about a decade's worth of BoA decisions. Battistelli lost his cool about 8 years ago and now we have loads of discredited decisions, including some on European software patents. Getting back to the drawing table is well overdue. Doing illegal things for so many years, hoping that rigged courts will then rubber-stamp them, is what we can expect from primitive societies, not the very heart of Germany. Speaking of Germany, Merkel is lying again. Old mythology is being spread in the news today. As we noted before, Merkel and her colleagues also protect the "Mafia" at the EPO and cover up/hide the crimes at the EPO (in Germany) because of financial interests. Merkel's latest remarks are bound to infuriate billions of people who cannot be vaccinated due to patent monopolies. Those who echo the same talking points (as one comment in IP Kat did yesterday) basically spread a very racist lie. They want us to think that given knowledge and equipment poor countries still cannot manufacture thei own vaccines. As if people in those countries are brutes and animals or something... ⬆