5. Non-attendance at oral proceedings
Overview
5. Non-attendance at oral proceedings
The absence of parties from oral proceedings is in general governed by R. 115(2) EPC and – for the boards of appeal – by Art. 15(3) and (6) RPBA 2020. Concerning non-attendance at oral proceedings before the examining division, see also the notice from the EPO, OJ 2020, A124.
According to Art. 15(3) RPBA 2020, the board is not obliged to delay any step in the proceedings, including its decision, by reason only of the absence at the oral proceedings of a party duly summoned who may then be treated as relying only on its written case (see also Art. 15(3) RPBA 2007, which has essentially the same wording as Art. 15(3) RPBA 2020). The board may therefore, in accordance with Art. 15(6) RPBA 2020, ensure that the case is ready for decision at the conclusion of the oral proceedings, unless there are special reasons to the contrary.
- T 124/22
Abstract
In T 124/22 the parties had been summoned to oral proceedings before the board and a communication had been issued under Art. 15(1) RPBA. By letter of reply, received one day before the scheduled oral proceedings, the respondent had stated that it would not be attending the arranged oral proceedings. No substantive submissions had been made. Subsequently, the oral proceedings had been cancelled.
The board noted that the respondent's representative had provided his videoconferencing details eight days before the scheduled oral proceedings, indicating an intention to participate. However, he had notified the board of his non-participation only one day before the scheduled proceedings. Typically, such notifications were given well in advance (see also T 930/92). According to the board, given that the board's preliminary opinion had been issued ten months ahead of the scheduled hearing, the respondent had had ample time to inform the board of its non-attendance well ahead of the hearing.
In the board's opinion, while it was not uncommon for representatives to receive late instructions, they should seek timely directions from their clients, particularly when arranged oral proceedings approach. In this instance, the representative had failed to communicate promptly with the board's registry. The board pointed out that it (and presumably the opposing party's representative) had already invested some time in preparing for the oral proceedings. It recalled that according to Art. 6 of the epi Code of Conduct, members are required to act courteously in their dealings with the EPO. The same principle applied to behaviour towards other representatives (Art. 5(a) of the epi Code of Conduct).
The board also took the view that the respondent had effectively withdrawn its request for oral proceedings by declaring its intent not to attend them. In turn, the board did not consider the conduct of oral proceedings to be expedient (Art. 116(1) EPC). As a consequence, the decision was handed down in written proceedings (Art. 12(8) RPBA).