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Oral proceedings conducted in The Hague or Munich?

Since the start of the BEST programme (Bringing Examination and Search Together) oral proceedings in examination and opposition can be held both in The Hague and in Munich, whereas formerly these proceedings could only be performed in Munich.

The Technical Board of Appeal has recently issued two decisions on the question of whether a party’s request to conduct oral proceedings in Munich instead of in The Hague can be denied. In T0933/10, the original request was refused by the examining division. On appeal, the Board said that the examining division did not provide any reasons for its decision. Also, the arguments of the applicant were not dealt with by the examination division. Therefore, the Board decided that a substantial procedural violation had taken place and that the appeal fee should be reimbursed. The case was remitted to the examining division to enable issuing a new decision (with motivation). However, the Board did not indicate that the applicant’s request regarding the venue of oral proceedings should be allowed.

From a legal point of view, T0689/05 is more interesting. Here, the European patent application was refused during oral proceedings in The Hague. Also, the Board said that the decision to refuse the applicant’s requests (transferral of oral proceedings, and reimbursement of additional applicant’s costs) was not reasoned, thus constituting a procedural violation. However, the violation was not considered substantial, since it did not affect the entire proceedings. The main issue in appeal – as presented by the applicant – was the patentability of the application at hand. The appellant had not requested that the case be immediately remitted to the examining division. Further, the Board holds that oral proceedings can be held in The Hague based on Articles 16 and 18 of the revised EPC, also regarding applications filed before 29 November 2000 (Revision Act).

The practice that hearings before the EPO take place in The Hague is thus consolidated and applicants, opponents and appellants should be prepared to travel to The Hague for oral proceedings. This opens opportunities for patent law firms with staffed offices in both The Hague and Munich, like VEREENIGDE, to obtain a key position in serving clients before the EPO.