VII. ORAL PROCEEDINGS BEFORE THE BOARDS OF APPEAL
VII.1
Notice of the Vice-President of Directorate-General 3 of the European Patent Office dated 16 July 2007 concerning oral proceedings before the boards of appeal of the EPO (OJ EPO 2007, Special edition No. 3, 115)
Since 1 November 2000 the procedure set out below has been used for fixing the dates of oral proceedings before the boards of appeal. This procedure has been approved in co-operation with former DG 2 (now DG 1) and after discussion in the Standing Advisory Committee before the EPO (SACEPO).
1. The boards of appeal fix one single date for oral proceedings. A pre-announcement of the date is not made.
2. Oral proceedings appointed by the EPO 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.
2.1 Serious substantive 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,
- 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,
- holidays which have already been firmly booked before the notification of the summons to oral proceedings.
2.2 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.
2.3 Every request for fixing another date for oral proceedings should contain a statement why another representative within the meaning of Articles 133(3) or 134 EPC cannot substitute the representative prevented from attending the oral proceedings.
VII.2
Notice of the Vice-President of Directorate-General 3 of the European Patent Office dated 16 July 2007 concerning sound recording devices in oral proceedings before the boards of appeal of the EPO (OJ EPO 2007, Special edition No. 3, 117)
All parties to oral proceedings before the boards of appeal and their representatives are hereby informed of the following rule.
At oral proceedings under Article 116 EPC before a board of appeal no person other than an EPO employee is allowed to use any kind of sound recording device in the hearing room.
VII.3
Communication from the Vice-President of Directorate-General 3 of the European Patent Office dated 16 July 2007 concerning the obligation to give notice pursuant to Rule 4(1), first sentence, EPC in proceedings before the boards of appeal of the EPO (use of an alternative official language in oral proceedings) (OJ EPO 2007, Special edition No. 3, 118)
In oral proceedings before the European Patent Office a party may use one of the Office's other official languages in lieu of the language of the proceedings provided that he gives notice in good time in accordance with Rule 4(1), first sentence, EPC or makes provision for interpreting into the language of the proceedings.
In proceedings before the board of appeal this obligation to give notice also applies if the party has lawfully used an alternative official language in oral proceedings before the department of first instance (see decision T 34/90, OJ EPO 1992, 454).
This communication applies as from the entry into force of the revised text of the European Patent Convention.
VII.4
Compensation and fees payable to witnesses and experts (OJ EPO 1983, 100)1
1. Articles 116 and 117 EPC together with Rules 71 – 76 EPC provide for the taking of evidence from witnesses or experts in oral proceedings before the European Patent Office. Part E-IV, points 1 to 4, of the Guidelines for Examination in the European Patent Office give general guidelines on the taking of evidence by the relevant departments of the European Patent Office.
2. To secure payment of costs for the taking of evidence the European Patent Office may make the taking of evidence conditional upon deposit with it, by the party who requested the evidence to be taken, of a sum the amount of which shall be fixed by reference to an estimate of the costs (Rule 74(1) EPC).
3. Any witness or expert who is summoned before the European Patent Office may request the Office to allow his evidence to be heard by a competent court in his country of residence (Article 117(4) EPC), in accordance with the provisions of Article 131(2) EPC.
4. Witnesses who are summoned by and appear before the European Patent Office are entitled to:
(1) appropriate reimbursement by the European Patent Office of expenses for travel and subsistence (Rule 74(2) EPC). An advance for the expenses may be granted to them following written request to the Office.
(2) appropriate compensation paid by the European Patent Office for loss of earnings (Rule 74(3) EPC). Payment of compensation shall be made after the witness has fulfilled his duties.
5. Witnesses who are not summoned by the European Patent Office but whose evidence is heard in proceedings before the Office are also entitled to reimbursement by the European Patent Office of expenses for travel and subsistence, and compensation for loss of earnings. Such reimbursement is dependent on the department in question taking a decision that it should hear the additional evidence, following a reasoned request by one of the parties to the proceedings (Guidelines for Examination Part E-IV, 1.6.2) that the evidence be heard.
6. Experts who are summoned by and appear before the European Patent Office are entitled to:
(1) appropriate reimbursement by the European Patent Office of expenses for travel and subsistence (Rule 74(2) EPC). An advance for these expenses may be granted following a written request to the Office.
(2) fees for their work pursuant to Rule 74(3) EPC determined by the Office taking into account a proposal by the expert concerned and possible comments by the parties.
7. Experts who are not summoned but are heard are also entitled to reimbursement by the European Patent Office of expenses for travel and subsistence, and fees for their work. Such reimbursement is dependent on the department in question taking a decision that it should hear the additional evidence of the expert following a reasoned request by one of the parties to the proceedings (Guidelines for Examination Part E-IV, 1.6.2) that the evidence be heard.
8. Payment procedure
(1) Under the provisions of Rule 74(4) EPC the Administrative Council of the European Patent Organisation has adopted Implementing Regulations on the compensation and fees payable to witnesses and experts2 and these are printed in full under point 9 below.
(2) When a witness or expert is summoned to proceedings at the European Patent Office he will receive with the summons (Rule 72(2) EPC) a travel order containing details of those amounts payable under points 4(1) or 6(1) above, together with a request form covering an advance on expenses. Before an advance can be paid to a witness or expert his entitlement must be certified by the Division or Board which ordered the evidence to be taken. The request form must therefore be returned to the Office for certification.
(3) Payments to witnesses or experts for loss of earnings or fees under points 4(2) and 6(2) above will be made following submission to, and certification by, the Division or Board which ordered the evidence to be taken. These payments together with any payments outstanding in respect of expenses for travel and subsistence will be made after the witness or expert has given his evidence and the Division or Board which ordered the evidence to be taken has certified the witnesses' or experts' entitlement.
(4) In the case of fees payable to experts the European Patent Office may decide to invite the parties to submit their comments on the amount proposed by the expert (Article 3(2) Regulation on Compensation and Fees Payable to Witnesses and Experts), in which case payment can only be made after these comments have been received and the Division or Board has certified the entitlement.
9. Regulation on Compensation and Fees Payable to Witnesses and Experts
THE ADMINISTRATIVE COUNCIL OF THE EUROPEAN PATENT ORGANISATION,
HAVING REGARD to the European Patent Convention and in particular to Rule 74, paragraph 4, of the Implementing Regulations thereto,
HAS ADOPTED THIS REGULATION3:
Article 1
Travel and subsistence expenses payable to witnesses and experts
The compensation payable to witnesses and experts in respect of travel and subsistence expenses provided for in Rule 74, paragraph 2, and the advances to which they may be entitled, shall be calculated on the same basis as the compensation received by employees of the European Patent Office in grade A4 when fulfilling missions entrusted to them.
Article 2
Compensation for loss of earnings payable to witnesses
(1) The compensation for loss of earnings payable to witnesses pursuant to Rule 74, paragraph 3, shall be equal to one-sixtieth of the basic monthly salary of an employee of the Office at the lowest step of grade A4.
(2) If a witness is required to be absent for a total period of more than twelve hours, he shall be entitled to payment of further compensation equal to one-sixtieth of the basic salary referred to in paragraph 1 in respect of each further period of twelve hours which is commenced.
Article 3
Fees payable to experts
(1) The amount of the fees payable to experts pursuant to Rule 74, paragraph 3, shall in each case be determined taking into account a proposal by the person concerned.
(2) The European Patent Office may invite the parties to submit their comments on the proposed amount.
Article 4
Certification of witnesses' and experts' entitlement to compensation and fees
(1) The entitlement of witnesses and experts to compensation and fees shall be certified by the Division or Board which ordered the evidence to be taken, unless it has delegated this power to the member commissioned to take the evidence.
(2) Paragraph 1 shall apply with respect to advances claimed by witnesses and experts on travel and subsistence expenses.
Article 5
Entry into force
This Regulation shall enter into force on 21 October 1977.
Done at Munich, 21 October 1977
For the Administrative Council
The Chairman
G. VIANÈS