Haar or Munich (G 2/19)

The Technical Board of Appeal 3.5.03 had to deal with an obviously illegitimate appeal. In this appeal, an appellant filed third party observations in the prosecution procedure of a EP patent application, and intended to oppose the decision of grant by reasoning that his observations according to Art. 84 EPC would not be considered at all in a subsequent opposition procedure.

The Technical Board of Appeal took this opportunity to ask the Enlarged Board of Appeal if an oral proceeding must be appointed in this case, although the appeal was obviously illegitimate.

Curiously, the appellant did not accept that the oral proceeding was appointed in Haar (a suburb of Munich), which is the current seat of the boards of appeal. The appellant requested the oral proceedings to be relocated to Munich as, in his view, according to the European Patent Convention, Munich is the only location were oral proceedings can be held.

The Technical Board of Appeal considered this to be another general problem with significant consequences and the question arose if such a request by the appellant must be granted or not.

However, the Enlarged Chamber of Appeal decided in G 2/10 that there is neither a right to oral proceedings by an uninvolved third party, nor that the „Haar“ site transgress the EPC.

From our point of view, it is very regrettable that the European Patent Convention does not see any possibility for third parties to submit clarity objections against a European patent. Third parties are not involved in examination proceedings and in opposition proceedings, clarity as an opposition ground is not provided for.

As regards the question “Haar or Munich”, we share the “sorrow” of some members of the boards of appeal who have to drive out from Munich to Haar for the oral proceedings: The boards of appeal are located “off the beaten track” in a simple office building with doubtful standards. There is no modern sensor technology in the sanitary facilities, the ways in the building are narrow and cramped, the offer in the canteen and cafeteria is not overbroad. But in order to change this, not only good will would be required but also good money.

Dipl.-Phys. Thorsten Brüntjen
Patent attorney

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