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The Enlarged Board of Appeal (EBA) of the European Patent Office (EPO) was asked questions following EPO Technical Boards of Appeal (TBA) decision T 831/17 as to whether (i) an obviously inadmissible appeal gives the appellant a right to oral proceedings and (ii) whether the appointment of oral proceedings in Haar (i.e. outside Munich, the main EPO site) is compatible with the European Patent Convention (EPC).

The short answers to these questions is, unsurprisingly perhaps, “no” and “yes”, respectively.

G 2/19 arose because the EBA was asked following questions following decision T 831/17 :

  1. Is the right to oral proceedings in appeal proceedings limited if the appeal is evidently inadmissible?
  2. If the answer to question 1 is yes, is an appeal against the decision to grant evidently inadmissible which has been filed by a third party within the meaning of Article 115 EPC and which has been based on the ground that the EPC does not provide for an alternative means of redress against a decision of the Examining Division not considering the third party’s objections alleging a violation of Article 84 EPC.
  3. If the answer to the previous question is no, is the Board of Appeal entitled to summon for oral proceedings in Haar if the appellant objects to this place as being not in conformity with the EPC and requests to relocate the oral proceedings to Munich?

( Original in German, above translation by Dr. Rudolf Teschemacher)

This decision has yet to be published on the EPO website . However, we can report that these questions were answered as follows:

  1. A third party within the meaning of Article 115 EPC who has filed an appeal against the decision to grant a European patent has no right to the treatment in oral proceedings before a Board of Appeal of the EPO of his request that reopening of the examination be ordered in order to remove allegedly unclear patent claims. An appeal filed in this way does not have suspensive effect.
  2. Oral proceedings of the Boards of Appeal at their location in Haar do not violate Article 113 (1) and 116 (1) EPC.

(The proceedings were in German, we are grateful for the above translation by Dr. Rudolf Teschemacher)

Remarkably, G 2/19 appears to be the swiftest decision (taken on the merits) in the history of EBA referrals. The whole procedure took less than 5 months from the referring decision of 25 February 2019. Moreover this appears to the first decision of the EBA announced during oral proceedings rather than being published as a written decision.

Some of this unusual speed might be because the EBA did not announce an opportunity for filing amicus curiae briefs as is usual in referral proceedings and as specifically foreseen in its Rules of Procedure.

Finally, following answer 1, above, the third party lacked the right to oral proceedings and thus question 3 should have been moot. However the EBA gave a decision anyway – the EBA and TBA can be located in Haar.

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