Enlarged Board of Appeal Decision G 2/19
Oral proceedings at the Haar premises
In the T831/17 case, the Appellant filed third party observations during examination and subsequently an appeal against the decision of grant by the Examining Division. He filed a request for oral proceedings, but objected inter alia to the oral proceedings being held in the recently created site at Haar/Munich.
Subsequently, the Board of Appeals related the following questions to the Enlarged Board of Appeals :
- In appeal proceedings, is the right to oral proceedings under Article 116 EPC limited if the appeal is manifestly inadmissible ?
- If the answer to the first question is yes, is an appeal against the grant of a patent filed by a third party within the meaning of Article 115 EPC, relying on the argument that there is no alternative legal remedy under the EPC against the examining division's decision to disregard its observations concerning an alleged infringement of Article 84 EPC, such a case of an appeal which is manifestly inadmissible ?
- If the answer to either of the first two questions is no, can a board hold oral proceedings in Haar without infringing Article 116 EPC if the appellant objects to this site as not being in conformity with the EPC and requests that the oral proceedings be held in Munich instead ?
The Enlarged Board of Appeals has decided as follows :
- Question number 1 was rejected as inadmissible.
- The second question has been rephrased and answered essentially as follows :
A third party in the meaning of Article 115 EPC, who filed an appeal against the decision to grant of an EP patent, is not entitled to oral proceedings before a Board of Appeals for discussing the dismissal of allegedly unclear claims (A84EPC) and ordering the remittance of the case to the Examining Division. Such an appeal does not have suspensive effect.
- Regarding the third question, the Board of Appeals decided that oral proceedings at the Haar premises do not contravene Article 113(1) and Article 116 (1) EPC.
While the grounds for the decision will follow, attacking via an appeal, a decision of grant by an Examining Division following third party observations based on lack of clarity during the examination procedure seems having little chance of success.
Also, oral proceedings in appeal cases will therefore also in the future take place in Haar.
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