Covid-19 is not a valid excuse on its own for not attending oral proceedings

Covid-19 has taken centre stage in our lives in the past months and has led the European Patent Office (EPO) to cancel all oral proceedings at their premises until 14 September 2020. Only oral proceedings by videoconference have been taking place in oppositions, and then only for “simple” cases. So far, according to the EPO, around 50 oral proceedings in opposition have taken place by videoconference and another 50 have been scheduled.

The Boards of Appeal of the EPO haven chosen a different model, however. They started having presential oral proceedings already on 18 May based on the circumstances of each case. The critical issue was considered whether travel restrictions impeded attendance or not.

In recent case T 437/17, the board had summoned the parties to oral proceedings on 8 July 2020. They asked the parties in advance whether travel restrictions would keep them from attending the oral proceedings. The board had noted that travel restrictions inside Germany had eased considerably during June.

Therefore, when the representative of the patentee, domiciled in Berlin, requested postponement on 23 June 2020 “due to health risks associated with COVID-19”, the board refused based on the lack of travel restrictions inside Germany. Apparently, the board was of the opinion that the vague “due to health risks associated with COVID-19” was not a serious reason under Article 15(2) of the Rules of Procedure. Stated differently, Munich is not any more dangerous than Berlin in terms of Covid-19…

As the icing on the cake, the board noted that since the opponent was able to travel from Padova in Italy for the oral proceedings, they had been justified in refusing the postponement. During the oral proceedings, the patent was revoked by the board.

Therefore, as we play catch-up with the oral proceedings postponed from this spring during the months of September to December, we need to be prepared to pack our bags in order to defend our cases or to be prepared to justify why travel restrictions keep us from going if we plan to request a postponement.