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Law & practice

Notice from the European Patent Office dated 18 December 2008 concerning oral proceedings before the EPO

OJ EPO 2009, 68

1. The current practice for fixing the date of oral proceedings before the departments of first instance was published in OJ EPO 2000, 456.

For the current practice before the boards of appeal, see Special edition No. 3, OJ EPO 2007, H.1.

2. On the initiative of the interested circles the criteria for the postponement of oral proceedings under Article 116 EPC before the departments of first instance have been reviewed. Following internal consultation it has been decided that the procedure for changing the dates of oral proceedings should be adapted:

2.1 The departments of first instance fix one single date for oral proceedings. No pre-announcement of the date by phone or fax will be made in inter partes proceedings. In principle, this also holds true for ex parte proceedings. However, the examining division may contact the party in advance in order to arrange a date.

2.2 Oral proceedings appointed by the departments of first instance will be cancelled and another date fixed at the request of a party only if the party concerned can advance serious reasons which justify the fixing of a new date. The request to fix another date shall be filed as soon as possible after the grounds preventing the party concerned from attending the oral proceedings have arisen. The request shall be accompanied by a sufficiently substantiated written statement indicating these reasons.

2.3 Serious reasons to request the change of the date for oral proceedings may be, for instance:

  • a previously notified summons to oral proceedings of the same party in other proceedings before the EPO or a national court
  • - for the same date, or
  • - for the preceding or following day, or
  • - for the two preceding or two following days where the other oral proceedings take place at a geographically distant location,
  • serious illness,
  • a case of death within the family,
  • the marriage of a person whose attendance in oral proceedings is relevant,
  • military service or other obligatory performance of civic duties,
  • business trips which have been firmly booked before the notification of the summons to oral proceedings,
  • holidays which have already been firmly booked before the notification of the summons to oral proceedings. In the case of holidays scheduled, but still not booked, the representative shall mention the circumstances (e.g. school holidays) which prevent holidays from being rescheduled.

It should be noted that in opposition proceedings, in particular if more than one opponent is involved, a more strict approach may be applied to prevent a series of postponements.

2.4 Grounds which, as a rule, are not acceptable are, for instance:

  • a summons to oral proceedings before the EPO or a national court notified after the summons in the relevant proceedings,
  • excessive work pressure.

2.5 In order to make effective use of the available meeting rooms, and as Mondays and Fridays are normal working days, oral proceedings will also be scheduled for these days. The fact that the representative and/or the parties have to travel on weekends is not a sufficient reason to change the date of the oral proceedings. The departments of first instance will, however, circumstances permitting, try to be flexible where it has been requested that the starting time be postponed in order to enable the party to travel on the same day.

This new, more liberal practice, in particular the more relaxed criteria under which a rescheduling of oral proceedings may be requested, will be reviewed at a later stage and changed accordingly where necessary.