11.6.5 Early case management
11.6.5.1 Designation of rapporteur for the preliminary study of appeal
For the early management of a case, the chair of the Board may first designate only the rapporteur before determining the remaining composition of the Board.82 The rapporteur then carries out a preliminary study of the appeal.83 The rapporteur also assesses whether the appeal should be given priority over other appeals – for example, if a remittal to the Examining or Opposition Division seems likely (e.g., because of a fundamental deficiency in the proceedings) or if the appeal appears to be inadmissible. The rapporteur can also suggest that the appeal be treated together with other appeals – for example, because they are clearly connected to each other (e.g., parent and divisional applications or applications based on the same priority application).84
Only when the composition of the Board is complete may the rapporteur draft communications on behalf of the Board to the parties, make preparations for the oral proceedings and draft decisions.85
11.6.5.2 Acceleration of the appeal proceedings
In general, cases are treated based on a first in, first out principle. However, a Board may accelerate the proceedings of its own motion.86 This allows the Boards to give an appeal priority over other pending appeals. A case may, for example, be accelerated because the rapporteur has identified a fundamental deficiency in the proceedings at first instance, which renders the case highly likely to be remitted.
Parties may also request the acceleration of appeal proceedings.87 The requesting party needs to provide reasons and, where appropriate, documentary evidence. Valid reasons for acceleration are, for example, that national infringement proceedings have been brought or are envisaged or that the decision of potential licensees of the patent-in-suit hinges on the outcome of the appeal.
Acceleration can be requested not only by parties but also by a national court. A court does not need to provide specific reasons for requesting acceleration. As a rule, Boards will grant a request for acceleration from a court. The Board will subsequently also promptly inform the court of when oral proceedings are likely to take place.88
When the Board decides to accelerate proceedings, the case is given priority over other cases, and the Board may adopt a strict framework for the purpose of case management,89 subject to the parties’ right to be heard and the principle of fair proceedings. If the parties agree, the minimum notice of two months for summons to oral proceedings can be shortened as well.90
11.6.5.3 Early exchange with the parties
No pre-hearings or case management hearings are organized before the Boards of Appeal. In the written phase of proceedings, the directions on matters of procedure are given by means of written communications.91 In practice, such early directions are rarely given.
The Board may also invite the parties, through a communication, to file observations on specific issues or in reaction to a preliminary view of the Board on patentability issues.92 Such a communication may be useful where parties have not requested oral proceedings. If such an invitation is accompanied by a time limit for reply, the applicant in ex parte proceedings must pay special attention to the communication: if the applicant does not reply to the invitation within the period specified by the Board, the European patent application is deemed to be withdrawn.93
In most cases, the first communication on substantive issues is issued to the parties once the date for the oral proceedings is set (see Section 11.6.8.2 below).
11.6.5.4 Annual list of cases
Before the start of a new calendar year, a list of cases is published, indicating for each Board all the cases that will likely be treated in the coming year, particularly cases where it is likely that oral proceedings will be held or a communication will be issued.94 This advance planning of the expected workload for the coming year is done by the chair of each Board in October of the preceding year. It is intended to increase efficiency for the Boards and the parties and to make the work of the Boards more transparent and predictable. The annual list of cases is published on the Boards of Appeal website.95