The Board of Appeal in decision T0831/17 has referred the following questions to the Enlarged Board of Appeal (our English translation, original questions in German):
1. Is the right to oral proceedings according to Article 116 EPC limited in appeal proceedings, when the appeal is prima facie inadmissible?
2. If the answer to question 1 is yes, is an appeal against the decision to grant a patent prima facie inadmissible in this regard, which appeal a third party filed with regard to Article 115 EPC and justified in that according to the EPC no alternative remedy exists against the decision of the examining division not to take into account the third party’s objections regarding an alleged violation of Article 84 EPC?
3. If the answer to one of the first two questions is no, may the Board hold oral proceedings in Haar without violating Article 116 EPC, if the appellant considers this place to be not in conformity with the EPC and has requested a relocation of the proceedings to Munich?
The facts of this case are rather unusual, in that the appeal in question was filed by a “third party” against a decision to grant a European patent. The appellant sought to argue that its appeal was admissible on the basis that (a) the patent was granted despite clarity objections raised in third party observations during pre-grant examination, (b) clarity is not available as a ground of post-grant opposition, and so (c) the only available remedy for the third party was to appeal against the decision to grant.
The Board of Appeal summoned the appellant to oral proceedings in Haar (where the Boards of Appeal are located). In response, the appellant requested that the oral proceedings were relocated to Munich, on the basis that Haar is not specified in the EPC as a location of the EPO. The Board of Appeal then cancelled the hearing and referred the above questions to the Enlarged Board of Appeal. Specifically, the Board of Appeal considered that input from the Enlarged Board of Appeal was needed concerning the right to oral proceedings in the case of prima facie inadmissible appeals (question 1) and whether the appeal was in fact prima facie inadmissible (question 2). If the answer to either of questions 1 and 2 is no, the Enlarged Board of Appeal will then consider whether Munich encompasses Haar.
Question 3 is perhaps of more general interest than the questions 1 and 2. Article 6(2) EPC states that “The European Patent Office shall be located in Munich. It shall have a branch at the Hague.” The Protocol on Centralisation provides for a sub-office in Berlin. The Boards of Appeal moved from a central Munich location to Haar (which is suburb of Munich) in 2017. If Haar is not considered to be in Munich, then the current location of the Boards of Appeal could be found to be contrary to the EPC.
The Boards of Appeal’s move to Haar was not universally popular, and indeed it happened against a backdrop of tension between the then-President of the EPO and Boards of Appeal. It will therefore be interesting to see how the Enlarged Board of Appeal responds to question 3 (assuming it answers “no” to one of questions 1 and 2). Of course, the Enlarged Board of Appeal will be able to avoid answering question 3 if it answers yes to both questions 1 and 2.
The referral is now pending as G2/19, and a decision is expected in around 18 months. We will report again when there is any further news.
UPDATE: the Enlarged Board of Appeal expedited their consideration G2/19, and issued an oral decision on 16 July 2019. See our news item discussing their conclusions here.