9.5.11 Cases concerning the decision-making process and the decision

In T 1243/17 the board was not convinced that it could be concluded from the case law of the European Court of Human Rights (ECtHR) that the duration of examination proceedings before the EPO had to be systematically taken into account when assessing whether the reasonable time requirement under Art. 6(1) ECHR, first sentence, had been met (see, in this respect, the analysis in decision T 1824/15 of the ECtHR's judgment of 2 May 2013 in Kristiansen and Tyvik AS v. Norway, relating to the progress of proceedings before the Norwegian Industrial Property Office). The board observed that, while the ECtHR had established a violation of the right of access to a court under Art. 6(1) ECHR, it had not ruled on whether there had been any violation of the right to be heard within a reasonable time. Moreover, and contrary to the facts of the case before the ECtHR – in which a "dispute" had already been brought before the Norwegian Office's (non-judicial) boards of appeal as part of the administrative proceedings – the examination proceedings at issue in this case had been purely non-adversarial, ex parte proceedings, and therefore preceded any "dispute" to which Art. 6(1) ECHR could be applied. The board nevertheless considered that the principles developed by the ECtHR on the duration of proceedings provided a useful framework for assessing the length of the proceedings in the case in hand. It observed that the contested decision in this case had been issued just over 17 years after the filing date of the application, and that the examination proceedings, at least between the search report and the first communication, had "stagnated without explanation" for more than eight years, which was normally unacceptable (see T 315/03, T 1824/15, and T 2707/16). However, the appellant had not complained about this stagnation, even though, according to the case law of the ECtHR, it was expected to do what it could to shorten the proceedings. It had also failed in its duty – which the board considered incumbent on all applicants – to co-operate with the examining division. Observing lastly that the appellant had not filed any specific request in connection with the alleged violation of Art. 6(1) ECHR, in particular none for reimbursement of the appeal fee (R. 103 EPC), the board therefore decided not to order reimbursement.

In T 2340/13 the length of time between the oral proceedings and issuing of the minutes and written decision of the opposition division was 13 months and 14.5 months respectively. The board noted, with reference to T 358/10, that even if this delay by itself were not considered to be a substantial procedural violation, it plausibly contributed to the other procedural violations.

In T 2707/16 the contested refusal decision was taken more than fourteen years after the filing date. The board found that the excessive delays, in particular the lapse of more than seven years before the second substantive communication was sent out, constituted a procedural violation. The board argued that the violation was also substantial because the severe delays had the consequence that the first-instance decision was taken much later than it would have been without the procedural deficiencies. Thus, they had an impact on an essential element of the decision, namely its date ("justice delayed is justice denied"). However, the board was of the opinion that a reimbursement of the appeal fee in the circumstances should be regarded as equitable only where the applicant has made clear by some action that he did not tacitly agree with the stagnation of the proceedings. The board found the appellant failed to provide any such signal for a very long period of time and therefore refused the request for reimbursement.

In T 2377/17 the board found the delay of 14 years before the examining division issued its first substantive communication to be a substantial procedural violation. The board noted that the appellant had remained inactive for over 12 years before it requested accelerated examination, but the examining division then still did not succeed in issuing a communication within the period of six months to which it had committed; instead, it required close to two more years. After the appellant filed a timely reply, it again took more than 18 months – and a second request for accelerated examination, again leading the examining division to commit itself to a date it ultimately did not keep – before the examining division issued the summons to oral proceedings. Contrasting the applicant's attempts to move the case forward with those of the applicant in T 2707/16, in which the same board found the reimbursement of the appeal fee not to be equitable because the applicant there had taken insufficient action to try to move the proceedings forward, and noting the periods of unjustified delay that occurred despite the appellant's attempts to move the case forward, the board considered reimbursement of the appeal fee to be equitable in the case in hand.

In T 2699/17 the board agreed with the appellant (applicant) that a total processing time of more than 12 years (from filing of the application to the decision to refuse the application) was by far above the average, but found that although undesirably long, the duration of the case did not amount to a substantial procedural violation, taking into account the particular circumstances of the case. The reasonableness of the length of the proceedings must be assessed in each case but unlike in T 2707/16, in which there was a long period of stagnation, in the case in hand the examining division regularly returned to the case and addressed various issues of substance, which the appellant promptly addressed. During prosecution of the case, the decision in G 1/07 (OJ EPO 2011, 134) was also issued, which was highly pertinent to the application. The board was also unable to see why the appellant waited until the appeal stage to voice its concerns instead of making use of the PACE programme, which gives applicants a convenient tool to speed up the pace at which the proceedings are progressing (see also Chapter I.A.3.1. "Medical methods").