T 0174/16 (Request for postponement/NANO TECHNOLOGIES) 01-02-2019

1. Request for postponement of the oral proceedings before the opposition division

1.1 It is within the discretion of the opposition division to grant a request for postponement of the oral proceedings before it. When arriving at its decision the opposition division has to consider all relevant factors of the particular circumstances of the case and must exercise its discretion in a reasonable way (T 1505/06, Reasons 1.3 and 1.4; T 447/13, Reasons 2 and 3 referring to G 7/93, Reasons 2.6, and citing T 2526/11, Reasons 2.2).

1.2 In exercising this discretion, the principles to be applied are set out in the Notice from the EPO dated 18 December 2008 concerning oral proceedings (OJ EPO, 1/2009, page 68) reflected in the Guidelines Part E-II, 7, 2015, in force at the relevant date. According to this Notice,

"oral proceedings... will be cancelled and another date fixed at the request of a party 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 grounds preventing the party concerned from attending the oral proceedings have arisen. The request shall be accompanied by a sufficiently substantiated written statement indicating these reasons."

1.3 The reasons given in the impugned decision essentially boil down to two aspects, namely that the request for postponement was filed late and that it was in fact possible for the appellants to attend the oral proceedings, so the reasons advanced could not be considered serious reasons within the meaning of the above provisions.

1.4 Given the discretion of the opposition division the principal task of the board of appeal is to consider whether, when exercising its discretion, the opposition division took all relevant factors of the particular circumstances of the case at hand into account, and whether it exercised its discretion in a reasonable way.

1.4.1 According to the impugned decision, the airline had published information concerning the cancellation due to the strike at the latest on 9 November 2015 at 4.30 hrs in the morning and, according to the statements by the persons present at the oral proceedings before the opposition division, mass media in Poland had already published information about the strike on 7 November. Filing the written request only at 15.06 hrs on Monday 9 November was therefore late.

1.4.2 It is not reasonable to rely only on statements made by persons associated with the opponent attending the oral proceedings in the absence of the proprietor and by an unidentified member of the public (see item 2.2 of the Reasons of the impugned decision) to arrive at the conclusion that the appellants could and should already have been aware of the strike on 7 November 2015. In any event, the opposition division did not consider the fact that 7 November 2015 was a Saturday and that Monday 9 November was the first working day after the alleged publication of the strike in the Polish mass media. Moreover, in its decision the opposition division refers to "about 11 hours" that had lapsed between the publication of the cancellation of the flight on the airline's website and the filing of the written request. This suggests that the opposition division was of the opinion that the appellants could and should have filed the request at a time close to 4.30 hrs on Monday 9 November, which is of course entirely unreasonable. What is more, the opposition division did not consider the fact that the appellants' representative had contacted the opposition division by telephone at the latest at 13.45 hrs on 9 November, and that thereafter several telephone conversations between the appellants' representative and the formalities officer took place (see item 2.1 of the Reasons of the impugned decision). The opposition division merely considered the time of receipt of the written request, which was 15.06 hrs. Moreover, the evidence submitted with the written request clearly shows that the appellants' representative had made a reasonable effort to find alternative travel means, and it cannot be held against it that it filed the written request only after having made such an effort and after having collected evidence thereof. For these reasons and considering the particularities of the case at hand, it was unreasonable to draw the conclusion that the request for postponement was filed late, i.e. not "as soon as possible after the grounds preventing the party concerned from attending the oral proceedings have arisen".

1.4.3 It was also unreasonable to consider it "possible by taking due care" to travel by airplane and that "at least going by car would still have been possible" (see item 2.3 of the Reasons of the impugned decision).

In this respect, the opposition division did not consider the evidence provided in the fax to show that flying using other airlines was not possible and showing four pages of flight connections of another airline. Instead, the opposition division relied only on the submissions by the persons present at the oral proceedings, i.e. persons representing the opponent and the unidentified member of the public. Nor was any person identified whose flight had been cancelled due to the strike and who managed to rebook their flight or to use another airline. It appears that one person present at the oral proceedings flew from Krakow to Munich. But it is unreasonable to conclude therefrom that it was possible to fly to Munich "from other places close to Warsaw", as argued in the impugned decision. Since Krakow is some 300 km away from Warsaw, it can certainly not be considered "close to Warsaw". Moreover, the fact that a plane was flying from Krakow to Munich does not mean that it would still have been possible to book places on such a flight on 9 November, when many other flights had been cancelled due to the strike. Nor is it clear what the opposition division meant when it stated that it was possible to fly "to other places close to Munich".

Moreover, it is not reasonable to expect the appellants' representative to take the car on the afternoon of the day before the oral proceedings by referring to "Google Maps" for a total (net) driving time of "8 - 10 hours", as the opposition division did, irrespective of whether the appellants' representative had a driving licence. Whether a person present at the oral proceedings came by car from Warsaw is immaterial in this respect. Thus, it can certainly not be said that the appellant's representative "did not [make] all efforts [...] to get to the oral proceedings in Munich".

It is thus unreasonable to consider the cancellation of the flight, along with the impossibility of using other travel means, not to constitute "serious reasons" within the meaning of the above provisions.

1.5 In the impugned decision, reference is made to T 1102/03. This decision dealt with a request for postponement due to booked holidays and concerned proceedings including more than two parties. This decision is thus of little relevance to the case at hand.

1.6 For the above reasons, the opposition division exercised its discretion in an unreasonable way and moreover did not take all relevant factors of the particular circumstances of the case into account. As the opposition division's decision not to postpone the oral proceedings prevented the appellants from properly exercising their right to be heard pursuant to Article 113(1) EPC, the opposition division committed a substantial procedural violation.

1.7 According to the appellants, they were also misled by the opposition division's formalities officer, who had allegedly confirmed to the appellants' representative that the oral proceedings would be cancelled. Put differently, the appellants argue that holding the oral proceedings in their absence amounted to a breach of the principle of the protection of legitimate expectations.

1.7.1 In the case at hand, it has been established that several telephone conversations took place between the appellants' representative and the formalities officer of the opposition division (see the impugned decision, page 5, first paragraph) the day before the oral proceedings. Regrettably, the public file does not contain any minutes of these conversations drawn up by the EPO. The board, which has access to the complete file, has established that the non-public part of the file likewise contains no such minutes drawn up by the EPO which could have a procedural bearing on the present case (see T 1691/15, Reasons 3).

1.7.2 On the other hand, in order for a party to claim that it has relied on incorrect information in accordance with the principle of legitimate expectations, it has to be established that the erroneous information from the EPO was the direct cause of the action taken by the party and objectively justified its conduct (T 460/95 of 16 July 1996, Reasons 4, and G 2/97 Reasons 4.1). In the case at hand, the appellants have not submitted that a particular action (or the omission of a particular action) was the direct consequence of the alleged erroneous information. The action taken by the appellants, i.e. their absence from the oral proceedings, appears to have been caused by the impossibility of the appellants' travelling to Munich due to the airline strike and the non-availability of other travel means, rather than by the alleged erroneous information.

1.7.3 The question of whether the opposition division committed a further procedural violation by its formalities officer allegedly issuing misleading information can remain open, however, since the board already accedes to the appellants' main request for the reasons set out in 1 to 1.6 above.

2. Remittal and reimbursement of the appeal fee

As shown above, the board has ascertained that there was a substantial procedural violation in opposition proceedings. Therefore, the decision under appeal must be set aside and the case must be remitted to the opposition division for further prosecution (Article 11 RPBA).

In these circumstances, the board considers a reimbursement of the appeal fee to be equitable and decides that the appeal fee is to be reimbursed (R. 103(1)(a) EPC).