Resolving scheduling conflicts between EPO and FPC oral proceedings

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The EPO has a pretty strict regime in place with respect to postponement of oral proceedings. As you might know, only a single date is fixed by the EPO ex officio, and this date

[…] will be cancelled and another date fixed […] only if the party concerned can advance serious reasons which justify the fixing of a new date. The request to fix another date shall be filed as soon as possible after the ground preventing the party concerned from attending the oral proceedings have arisen.

See the Notice from the EPO of 18 December 2008. Only a very limited set of ‘serious reasons’ is expressly whitelisted in ¶ 2.3. But even those whitelisted reasons are not sufficient sometimes. In particular in more recent times, at least in my experience. But that’s a different story; I might come back to this soon.

One of the whitelisted ‘serious reasons’ is a previously notified summons to oral proceedings before a national court. However, patent attorneys are not the legal representatives in by far the most cases at the FPC. They are rather only assisting, and the summons are not addressed to them. That makes it cumbersome to invoke the summons as a ‘serious reason’ with a request for postponement at the EPO.

However, the FPC has now issued a notice that patent attorneys assisting in proceedings before the FPC can request a confirmation that they are required to attend a hearing at the FPC, to avoid scheduling conflicts with the EPO.

Needless to say that this is MUCH appreciated.



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3 Replies to “Resolving scheduling conflicts between EPO and FPC oral proceedings”

  1. By introducing a lead time of at lead 6 months when summoning to oral proceedings it becomes quasi impossible for representatives to require postponement of OP in opposition should they receive in the meantime summons to a court, e.g. BPatG, or to a civil court where they need to assist the lawyer.

    A bit more flexibility should be allowable when a summons to another court is received after the summons from the EPO.

    The problem appears less stringent in appeal as there the lead time is 4 months, which is comparable with summons to courts in the contracting states.

  2. In most cases the FPC will provide the parties with a number of possible dates for instruction or main hearings. Accordingly, if the date for EPO oral proceedings are already fixed when the date for the FPC hearing is set, it will usually be possible to select other dates for the FPC hearing.

    Of course, the situation may be more difficult in summary proceedings or if the availabilities of the people required for the FPC hearing are very incompatible.

    Nevertheless, for us patent attorneys it is very useful to be able to obtain the court’s confirmation as soon as the FPC hearing date is fixed.

    1. I once ran into trouble when the EPO summoned me for a date on which I was already supposed to show up at the FPC as assisting patent attorney, i.e. not as representative. In that capacity, I was not mentioned on the summons. The request for postponement was a bumpy excercise. In such cases, the FPC’s confirmation will be helpful.

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