Monday 23 February 2015

EPO to revise strike regulations

According to a post on the IPKat here, the Den Haag appellate court has granted an appeal filed by EPO staff organizations SUEPO and VEOB against a 1st instance decision and ordered that the EPO should nullify recently introduced limitations of the right of the EPO employees to go on strike.

The English translation of the decision is not yet available but will be published. According to what I have understood, the EPO did not contest the international jurisdiction of the Dutch courts such that the ruling should have effect for the German parts of the EPO as well. Even though the international jurisdiction might be doubtful, I think that the decision of the EPO's management to subject its decisions to judicial review is of great benefit to the public trust in the organization.

Wednesday 18 February 2015

Once Out, Always Out

I have posted on a tendency to apply the discretionary power of the EPO Boards of Appeal to admit documents which had not been admitted by the Opposition procedure here. Other examples are  T1872/08, T1817/08  and T1485/08.

In brief, the Technical Board of Appeal argues in each of these decisions that it has no discretion on its own to admit documents which have not been admitted in the first instance for good reasons. Documents which have not been admitted in the first instance will not be admitted in the second instance either.

All these decisions refer to the decision T 640/91, Official Journal EPO 1994, 918 and terribly misunderstand this decision. The paragraph which is repeatedly cited relates to the question whether a refund of the appeal fees is justified because opposition division has violated the right to be heard by not admitting documents at a late stage and examines the way in which the first instance has exercised its discretion for this purpose.
A new decision in the same direction has been published today: T 1643/11. I really regret this development. The circumstances may be very different in the 2nd instance: Adjournment of the oral proceedings might have had to be necessary when the document was filed late in the Opposition Proceedings whereas the parties have plenty of time to study the documents when they are filed together with the appeal brief.

The approach taken by the TBA encourages parties to not even try filing documents at a late stage of the 1st instance but rather wait for the appeal in order not to produce evidence that the document "could have been filed in the 1st instance", which, according to the current attitude of the TBA, amounts to a death sentence of the evidence. This is clearly not beneficial for the procedural economy.
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