The requirement for immediate and complete substantiation of a request for re-establishment corresponds to the principle of “Eventualmaxime/ Häufungsgrundsatz/ le principe de la concentration des moyens”, according to which the request must state all grounds for re-establishment and means of evidence without the possibility of submitting these at a later stage.
Dynamic interpretation of the EPC, as derived from Articles 31(1) and 31(3) Vienna Convention on the Law of Treaties, must take account of developments in national and international procedural law, notably as regards the guarantees of fair trial before a tribunal of law (Article 6(1) ECHR).
There is no “absolute” right to oral proceedings upon a party’s request, but it is subject to inherent restrictions by the EPC and procedural principles generally recognised in the Contracting States of the EPO. If oral proceedings do not serve any legitimate purpose, the requirement of legal certainty in due time prevents the Board from appointing them. It is not the purpose of oral proceedings in the context of proceedings for re-establishment to give the appellant a further chance to substantiate their factual assertions or to provide evidence despite the absence of factual assertions in the request for re-establishment.
Case date: 26 July 2023
Case number: J 0006/22
Court: European Patent Office (EPO), Board of Appeal
A full summary of this case has been published on Kluwer IP Law.
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Art. 116(1) Oral proceedings SHALL take place [either at the instance of the European Patent Office if it considers this to be expedient or] at the request of any party to the proceedings.
Denying a party’s request for oral proceedings should violate the EPC, irrespective of how “dynamically” the EPO interprets Art. 116(1).
Art. 116 (2) EPC:
Nevertheless, oral proceedings shall take place before the Receiving Section at the request of the applicant only where the Receiving Section considers this to be expedient or where it intends to refuse the European patent application.
nope, this is not a refusal, as re-instatement does not happen after a refusal….
I dont understand the comment above: what “your” Board of Appeal is saying is that a “static” interpretation of the EPC may, in very particular cases, violate higher-ranked Treaties and this violation cannot be simply ignored. This principle is undisputable (without now going into the merits of this specific case)
Methinks that, with their lengthy explanations as to why they believe they are entitled to refuse a request for OPs, the Board doth protest too much. Their reasoning sucks too.
Might it not have been simpler (and perhaps even more time-efficient) for the Board to conduct the requested OPs and explain to the appellant the reasons why reinstatement could not be granted?