http://ipkitten.blogspot.com/2019/10/enlarged-board-of-appeal-releases-full.html
The EPO has announced the issue of the Enlarged Board of Appeal’s full reasoning in referral G 2/19. As previously noted on IPKat, the Enlarged Board of Appeal (EBA) had previously released their decision in G 2/19 but had not published the decision (EPO press release).
The referral originated from the Board of Appeal decision T 831/17. The appeal related to a case in which a third party had submitted observations pursuant to Article 115 EPC that a patent application (EP2378735) lacked clarity. Clarity is not a ground for opposition. The third party was therefore not able to oppose the subsequently granted patent on the same ground.
In order to pursue their clarity objection to the now granted patent, the third party filed an appeal against the decision to grant. The appeal was considered inadmissible. The Board of Appeal also referred the question to the EBA of whether the right to oral proceedings in appeal proceedings is limited if the appeal is evidently inadmissible. The referral also asked the question of whether the relocation of the Boards of Appeal to outside Munich contravened a party’s right to be heard.
Prior to the decision, the Haar/Munich aspect of the referral was covered by IPKat here, and the oral proceedings issue was covered in more detail here. The referral attracted a number of amicus curiae, including submissions from EPI and CIPA.
With regards to the questions concerning the right to oral proceedings, the EBA answered:
A third party within the meaning of Article 115 EPC who has filed an appeal against a decision to grant a European patent has no right to have its request for an order that examination proceedings in respect of the European patent are re-opened for the purpose of removing allegedly unclear claims (Article 84 EPC) heard at oral proceedings before a board of appeal of the European Patent Office. An appeal filed in such a way has no suspensive effect.
In other words, a third party who has filed an inadmissible appeal regarding the decision to grant a patent, is not entitled to oral proceedings in appeal in order to discuss the third party’s clarity objections. The EBA therefore closed the door (again) to the possibility that clarity may be discussed as a ground of opposition in appeal proceedings.
| Haar is also a type of sea fog… |
Turning to the Haar/Munich question, the issue of whether Haar is in Munich arose following the controversial relocation of the Boards of Appeal from central Munich to Haar. Haar is outside the boundaries of the city of Munich. As pointed out by the EBA, part of the purported purpose of the relocation was to protect the independence of the Boards.
The referred question asked whether situating oral proceedings in Haar contravened a party’s right to be heard. The EBA found that this was not the case. In particular, the EBA answered:
Oral proceedings before the boards of appeal at their site in Haar do not infringe Articles 113(1) and 116(1) EPC.
The EBA also observed that the Boards of Appeal were located only slightly outside the boundaries of the city of Munich…
The G 2/19 decision is currently only available in German. This Kat is therefore currently forced to rely on the EPO summary. Stay tuned to IPKat for further commentary once an English translation becomes available.
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