Facts

In opposition appeal proceedings before the European Patent Office in relation to revocation of a European Patent for a post holder, which was owned by Combisafe International AB (the Appellant), the opponent (the Respondent), Peri AG, argued that, due to the complexity and importance of the case for Peri, the holding of oral proceedings by videoconference was not a suitable format.

Decision

The Board noted that Article 15a (1) of the Rules of Procedure of the Boards of Appeal (RPBA) 2020, which entered into force on 1 April 2021, provides the Board with the discretion to hold oral proceedings by videoconference on its own motion if it considers it appropriate.

The Board said that the importance of a particular case for a party was not sufficient to dictate the format of the hearing because: (i) any and every case before a Board is deemed to be important enough to be heard properly; and (ii) the primary duty of the Board is to ensure that all parties involved can be guaranteed a fair hearing. The importance of a case is therefore acknowledged once the right to be heard has been secured. In the Board’s view, an oral hearing by videoconference was fully equivalent to an in-person hearing as far as the quality of the exchange of arguments was concerned.

The Board said that the same applied to the issues to be heard in oral proceedings. The complexity of an argument was not a ground for presenting it only in writing or only orally. By the same token, an issue could not be so complex that its oral presentation was contingent upon the medium used or the environment in which it took place. Accordingly, this argument could not prevent oral proceedings being held by videoconference.

Peri had also argued that the Board should consider provisions in German law and the compatibility of the format of oral proceedings by videoconference with the German constitution. The Board rejected these arguments, finding that both German law and the German constitution were irrelevant, as that was not the applicable law.

The Board therefore dismissed Peri’s arguments and decided in favour of a videoconference in view of the health risks and travel restrictions during the COVID-19 pandemic and due to the absence of compelling reasons rendering the case unsuitable for such a format.

Overall, the Board disagreed with the Opposition Division’s findings that the Patent lacked novelty and inventive step. Accordingly, the appeal was allowed, and the Patent was maintained as originally granted. (T 0978/16 Combisafe International AB v Peri AG (7 July 2021) (online 11 October 2021) — to read the decision in full, click here).