5.2.8 Professional representative's responsibility

The EPO must be satisfied that an accompanying person's oral submissions were made under the continuing responsibility and control of the professional representative.

In T 1027/13, on the day of the first instance oral proceedings, the chairman had categorically forbidden Mr H (accompanying person) to address the opposition division and to communicate with Mr W (representative), apparently under the impression that Mr H had not only been present to make submissions regarding some specific legal or technical points, but had actually been intending to present the complete case in place of the newly appointed representative Mr W. The patent proprietor and the opposition division had concluded that Mr H was trying to act as the representative of the opponent, thereby circumventing the provisions of Art. 133 and 134 EPC. The patentee also contested that there was proper control and supervision by Mr W since he had declared that he was not prepared to defend the case in oral proceedings. The question to be decided by the board was whether or not the categorical refusal to let Mr H make oral submissions or even communicate with the authorised representative merely amounted to a very strict but, nevertheless, correct exercise of discretionary power, still in line with the principles stated in G 4/95 or, instead, to an inappropriate exercise of this discretion, going beyond the discretionary remit. The board stated that as a consequence of this conduct of the oral proceedings, the representative of the opponent appeared to have been totally deprived of any support he was expecting to get from the announced accompanying person Mr H, i.e. a person very familiar with all aspects of the case from its very beginning. The categorical refusal in effect had been keeping the opponent from taking position in an "efficient and effective manner" on the contentious issues of the case, which would also have included the obviously very important supporting oral contributions by Mr H.

In case T 1458/11 appellant 2 (patent proprietor) was represented by a professional representative, Mr Ch, accompanied by Mr H, a trainee in the law firm of Mr Ch. Mr H had not been announced prior to the oral proceedings before the opposition division. Appellant 2 requested that Mr H be allowed to speak "on selected issues during the oral proceedings under his (Mr Ch's) supervision and responsibility". Appellant 1 (opponent) agreed to this with the proviso that Mr H would "not make the complete case". The opposition division allowed Mr H to speak "on selected issues under Mr Ch's responsibility". After the impugned decision was pronounced, appellant 1 submitted that, according to its observations, Mr H had spoken "for more than 50% of the time" and that this was not what had been agreed at the beginning of the oral proceedings. According to G 4/95, the opposition division had the duty to ensure that the oral submissions made by an accompanying person satisfy the conditions that they are made in addition to the complete presentation of the party's case by its professional representative and under the continuing responsibility and control of the professional representative. It was incumbent on appellant 1 to inform the opposition division of any alleged negligence of the opposition division's duty as soon as it became aware of it. This immediate reaction was required since a party to the proceedings must take an active part and must on its own initiative submit in due time whatever will support its position (cf. R 2/08). Furthermore, nothing indicated that appellant 1 was taken by surprise or that it was not prepared, or at least could not have been prepared, for the oral submissions made by the accompanying person. The board failed to see that a procedural violation occurred during the proceedings before the opposition division.