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Thursday, 24 November 2011

Not enough rigor shown by EPO Board of Appeal

Decision R 3/10 is only the second occasion (or second instance, if you prefer the pun) in which a party has succeeded in convincing the European Patent Office (EPO)'s Enlarged Board of Appeal to set aside a decision of a (lower) Board of Appeal.  While such petitions for review provide a possible mechanism to overturn a Board's decision, the grounds are very limited and R 3/10 brings the score so far to Boards of Appeal: 57 - Petitioners: 2. 

The background
The only previously successful petition (R 7/09) set aside a decision given by a Board where the opponent's appeal appeared not to have been contested by the patentee, but it then emerged that the patentee had never received the grounds of appeal or the invitation to respond, and was taken completely by surprise when a final decision issued from the Board. The circumstances of R 3/10 are more nuanced, more contentious and therefore more interesting.

"If I have any say in the matter",
muttered Ziggy, "your pinbones will be
long gone before
rigor mortis sets in"
The impugned decision in this case was T 136/09, concerning a patent covering a method of preparing a raw fish product by removing the pinbones quickly, before the fish meat succumbs to rigor mortis. The patent was opposed primarily on the grounds of lack of novelty and lack of inventive step, with the opponents relying on various prior art disclosures suggesting that processing and pinboning take place soon after catching the fish, but it was arguable whether there was a clear disclosure that this should occur pre-rigor, as the claims required.  This was one of those inventions where, even if novelty were established, an inventive step challenge would never be far behind.

 The opposition division held that the patent as granted lacked novelty but maintained the patent in amended form, and appeals were filed on both sides. Once both sides had presented their cases in writing, they were summoned to oral proceedings, which is where the trouble began.

The oral proceedings

What actually happened at oral proceedings is unclear in several respects, this being exacerbated by the customary practice of issuing Minutes which are almost entirely silent on what anybody actually said or argued. [Merpel comments: suffice to say that the Minutes devote more lines of text to the enthralling issue of who appeared for each party and how they identified themselves -- passport being a particularly popular choice, incidentally -- than to the actual points discussed over the course of a six-hour hearing].

It appears -- not from the Minutes but from evidence presented to the Enlarged Board -- that following some general opening remarks indicating that the festivities would centre on novelty and inventive step (this also having been flagged in the Summons to oral proceedings), the Chairman said he would like the parties to address the issue of novelty as regards the main request and a few of the auxiliary requests which had been grouped together, and invited the opponents to speak first, followed by the patentee. 

Awaiting the Board's decision on
novelty, the patentee's attorney
relaxed and polished his inventive
step arguments, little suspecting the
nasty surprise waiting for him

Both sides duly made their novelty arguments as requested, with no discussion of inventive step taking place. Nor did the Board ask any questions relating to inventive step or prompt the parties to address obviousness issues. When both sides had finished, the Chairman indicated that he wished to terminate the discussion of this part of the proceedings with a view to deciding the issue under discussion. The exact words used at this point are disputed, as discussed below, but it is not disputed that both parties were asked if they wanted to make any additional comments before the Board retired to consider, and both answered "No."

On reopening the proceedings the Chairman announced a decision: the main request was novel but it lacked an inventive step (the same being true for the auxiliary requests considered simultaneously). The patentee's representative immediately objected that inventive step had not even been discussed , but the Board dismissed this submission saying (according to the Minutes) that "the Chairman had explicitly indicated [prior to closing the discussion] that the Board will decide on both novelty and inventive step". 

What was really said?
The patentee later submitted declarations from five people present at the oral proceedings, denying that the Chairman ever mentioned inventive step as he was closing the debate, and claiming instead that the Chairman said a decision would be taken "on patentability". All of the declarations agreed that the parties had been asked only to address novelty and that no discussion of inventive step had taken place.

Merpel's interlude
Merpel says, the best part of this decision is trying to imagine the debate that must have taken place between the Board members behind closed doors: 

"So we're agreed, we can't quite kill it off for lack of novelty. But we're agreed that the invention is obvious, right?" 
"Well y-e-s-s, it looks that way, but shouldn't we discuss it first with the parties? Decide on the closest prior art, the skilled person, motivation to combine, all that stuff? I'm pretty sure we're supposed to. The right to be heard and so on." 
"Don't be such a softy. Everyone knew inventive step was up for debate, and I'm pretty sure we mentioned it at first thing this morning. The Chairman even asked both sides just now if they wanted to say anything else before we decided on patentability and they turned down the chance. I say we kill the patent now and let everyone get off home."
"How about a compromise: we bring them all back into the room, announce our decision that the claims lack novelty, and say that we are also inclined to refuse for inventive step, unless they want to address us 'further' on that point. That would at least keep the Enlarged Board from breathing down our necks in a petition for review ... "
"Don't make me laugh. The Enlarged Board has only ever reversed one Board of Appeal decision, and I suspect they only did that to show everyone that it was theoretically possible, just like time travel through wormholes might be possible, or like an EPO examiner could some day spontaneously agree that an amendment finds good basis in a drawing. Trust me on this, the Enlarged Board is the least of our worries. Let's just refuse and get it over with."
(Enough of the fictitious speculation says the IPKat. That's not how Board members discuss their cases.)

The Enlarged Board's decision
The Enlarged Board accepted the patentee's account that the inventive step refusal came as a complete surprise (i.e. implicitly rejecting the claim made in the Minutes that the parties had been specifically warned that a decision on inventive step was imminent). It appears that the Enlarged Board was at least partly swayed by common sense considerations: if the Chairman really had explicitly warned that a decision was to be given on both novelty and inventive step together, why on earth (the patentee rhetorically asked) would either side have declined to make further submissions there and then, knowing that they were forfeiting their right to discuss what might be the most critical point of the entire appeal?

The only possible answer, said the Enlarged Board, was that, whatever the Board of Appeal may have thought, there was a definite disconnect in understanding between the parties and the Board. The parties clearly believed that novelty was being decided separately from inventive step. They only realised that the Board was dealing with novelty and inventive step together after the Chairman announced the decision of lack of inventive step. This then became a fait accompli - at which point no matter how aggrieved the patentee may have been, the Board's decision was final and not open to discussion.

In the subsequent discussion of the remaining auxiliary requests, the Board firmly shut down any debate of the inventive step of each request as a whole and only admitted arguments directed to the new features added in that auxiliary request -- after all, the inventive step of the remainder of the claim had been decided on earlier.

The decision contains some good material on when and how Article 112a should be applied. A petition for review is allowable if there has been a substantial procedural violation -- in this case the right to be heard and to present comments at oral proceedings. The Enlarged Board noted that this was an objective question: it did not matter that the Board had acted in good faith, believing that neither party wanted to comment on inventive step, and nor did the question turn on whether the Board had deliberately denied the patentee the right to address inventive step prior to giving its decision.

As a result of the "unfortunate misunderstanding" between the Board and the patentee as to what the Board was intending to decide on, and because the formal statement of the Board's decision automatically precluded any possibility of further debate on inventive step, the Enlarged Board held that the patentee did not in fact have any opportunity to address this issue. This was a substantial procedural violation, and required the case to be remitted to the Board for a discussion of inventive step at oral proceedings.

The IPKat suspects this decision will be welcomed. The Enlarged Board could conceivably have reached the opposite conclusion by treating the Minutes of oral proceedings as an unimpeachable record of what actually happened. To its credit the Enlarged Board was prepared to look behind the very sparse Minutes and to take into account the patentee's version of events. The Enlarged Board also looked at circumstantial evidence (e.g. both parties declining to address the Board further at what ought to have been a critical moment if the Board had indeed warned them this was the first and last chance to talk about inventive step). The Enlarged Board's concern was to uncover objectively whether the parties had indeed been afforded the opportunity to address inventive step before the decision issued.

Unlike EPO examiners at oral proceedings, history
does not record Pope Gregory the Great as
having made any infallible pronouncement
s
The IPKat wonders if oral proceedings would not be fairer for all concerned if decisions of the EPO -- both at first instance and on appeal -- did not become immediately binding and did not preclude even a discussion of procedural fairness at the moment the chairperson uttered the magic words "It is decided that ...".What would be so wrong with a Chairman being allowed to say "in the interests of fairness we are going to reopen this debate to conclusively deal with your objection. You'd better make it good."?

The EPC could provide for provisional or interim verbal decisions allowing oral proceedings to be decisively dealt with and moved along, but with a decision only becoming final when issued in writing. Such an interim decision might only be revisited in limited specified circumstances, such as where a party argues that the right to be heard has been infringed, or where the relevant EPO division or Board is convinced on mature reflection that it should change its mind. 


After all, there must be countless examples where an examiner has realised that the orally-announced decision on e.g. inventive step does not stack up when one tries to reason it out in writing; in such cases one can often see that the eventual written decision is a vain attempt to dignify a poor decision with a threadbare cloak of reasoning. Incidentally, such a practice might also reduce both the number of appeals and the number of petitions for review.

As for the shortcomings of the EPO's minute-writing practice mentioned above - this is a topic which deserves a separate post, and is one to which this Kat hopes to return shortly.

18 comments:

Anonymous said...

Procedural economy, it seems, only comes into play when it is to the advantage of the EPO. I am having serious problems about this currently where it seems the examiner wants to kill the application by strangling our client financially as the process has been hideously protracted and correspondingly costly. Killing the application by issuing an official rejection will be rather complicated for them.

I can very well imagine that debate behind closed doors. Since the examiner made promises to discuss the issues and then refused to do so I am worried the minutes to be issued will not show what will actually take place.

MaxDrei said...

At oral proceedings, each issue is taken on its own and in strict sequence, with a Decision on each issue, during the day. One Chairman, retired by now I suppose, would announce on each resumption of proceedings how his Board was "minded to decide" on that issue but that we would now move on to the next issue.

He was wise enough to grasp that discussion of an issue later in the day often prompts a re-assessment of an issue addressed earlier in the day.

An old softy, a wimp, you might say, but is that not the better way and why can't all the other DG3 Chairmen do the same? There's no RPBA Rule forbidding it, is there? With only the odd exception, DG3 Chairmen today are well able to manage, calmly and politely, even the most hectoring of representatives, so there is no need for them to fear that the oral proceedings will be interminable if they don't bang their gavel at every opportunity.

Anonymous said...

Max Drei's observed practise is widely used in the Boards of Appeal. General practise appears to be that intermediate "opinions" are given about requests dealt with during the oral proceedings and only at the end of the oral proceedings the chairman asks which of the requests dealt with during the proceedings should be decided upon. This allows for withdrawal of requests before the decision is given: a request decided upon cannot any longer be withdrawn and it has to be dealt with in the written decision. The present practise appears to be a response to the many auxiliary requests filed nowadays by the parties and this allows dealing with them in an efficient manner.

MaxDrei said...

I wonder about the origin of comment 3, immediately above. To me it looks like DG3. Although the comment characterizes the statements of position during the day as mere "opinions" not "decisions" that "general practise" is not the way it feels, at least to this particular representative.

Of course, for the Board it is self-evidently convenient to manage the manifold requests of the patent owner so that, at the end of the day, there are but a minimum to address in the written decision. Nobody could dispute that that's "efficient". But efficiency, and work-saving for the Board, is not the same thing as the Chairman arranging the oral exchanges during the day to optimise arrival, at the end of the day, at the right result. One is reminded of comment 1, about arrangements being adopted, when they suit the convenience of the EPO. Comment 3 seems to me to bear this out.

One detects in comment 3 a distaste for "auxiliary requests". Why doesn't DG3 discreetly point out to the community of representatives that there are two categories of auxiliary requests, those that confirm that there is nothing patentable at the core, and those that zoom progressively in on a core of valid matter. The first sort are (of course) worse than useless to the patent-owning petitioner.

Representatives: remember the old agage: when in a hole, stop digging. This will serve your patent-owning client better than serving up on his or her behalf ever more futile auxiliary requests.

DG3: that should be enough to see off any perceived plague of tedious or useless auxiliaries.

Roufousse T. Fairfly said...

(Enough of the fictitious speculation says the IPKat. That's not how Board members discuss their cases.)

Indeed not, and I did not really find your piece entertaining.

The IPKat wonders if oral proceedings would not be fairer for all concerned if decisions of the EPO -- both at first instance and on appeal -- did not become immediately binding and did not preclude even a discussion of procedural fairness at the moment the chairperson uttered the magic words "It is decided that ...".

This is already possible in the current framework of Article 116 EPC, and you will very occasionally see an OP terminated with an announcement that the procedure will be continued in writing.

However the practice of striving to conclude OPs with an oral proceeding where a decision is pronounced certainly did not originate at the EPO, and is not unique to that institution.

With your proposed approach, what should happen after the conclusion of an OP if a party begins amending documents in new directions, or reverts to previously withdrawn requests, or inundates the division with new facts and arguments? Should a new OP be summoned, or refused under Art. 116(1), second sentence? Should the procedure be resumed in writing? Should the new submissions be simply ignored? What is then the purpose of an OP? Is this fair to the other parties in OPPO proceedings?

After all, there must be countless examples where an examiner has realised that the orally-announced decision on e.g. inventive step does not stack up when one tries to reason it out in writing; in such cases one can often see that the eventual written decision is a vain attempt to dignify a poor decision with a threadbare cloak of reasoning.

Your concern about the qualms of examiners obliged to draft poorly reasoned decisions is really quite touching. I think I ought to reciprocate and express sympathy for representatives who are obliged to defend quite hopeless cases to the bitter end...

If you consider a decision to be ill-founded, APPEAL IT. If DG3 is convinced, it will eventually can it, and even refund your 1180 Euros if the division bungled. I grant you that it could take years, but so would your suggestion of salami-like OPs.

Furthermore, in ex-parte examination proceedings the division could even decide in your favour under the provision of Article 109(1) and resume examination.

Roufousse T. Fairfly said...

Procedural economy, it seems, only comes into play when it is to the advantage of the EPO. I am having serious problems about this currently where it seems the examiner wants to kill the application by strangling our client financially as the process has been hideously protracted and correspondingly costly.

I see a contradiction here. If your second sentence is true, then procedural economy was achieved neither for the EPO nor for your client. I would submit that it could also be interpreted that you have been rather succesful over the years in preventing the division from reaching an unfavorable decision.

You can lay much blame at the feet of examiners, but "strangling a client financially" is certainly not one of their pet vices. I once had a case taken over from another colleague in which I introduced two new B-documents, at a still very early stage of the procedure. I considered these to be a bullseye hit for the invention, and it was clear to me what besides their anticipation, they also meant disaster for the small applicant's emerging business, as it fell clearly within the scope of the issued claims. The rep loathed me for this, even though I took even more care than usual in prosecuting the case. Would it have been better to turn a blind eye, and issue an invalid patent? It wouldn't have been fair to the applicant or investors, or even third parties. There was no appeal.

Killing the application by issuing an official rejection will be rather complicated for them.

Do you mean to say the case is now so messed up that the examiner is no longer sure where to begin (123(2)? 83? 84? 54(2)? 56? ...)? Or that there are dozens of outstanding requests?

I can very well imagine that debate behind closed doors.

Can you really?

Since the examiner made promises to discuss the issues and then refused to do so

Are you referring to the 1st examiner, his summons, the chairman, or the division as a whole? If this were true, you'd have a solid case for a severe procedural violation of your right to be heard (Art. 113).

Or is it that the debates were concluded once it was found that your requests clearly did not meet the EPC requirements without having to go through all objections?

I am worried the minutes to be issued will not show what will actually take place.

Is this a past or future OP? The OP is your chance to address the division as a whole, and your main interlocutor is the chairman, not the 1st examiner. It is his duty to make sure that your right to be heard is respected. It is yours to state your case as clearly as possible, and request items to be recorded in the minutes.

The division must LISTEN to you, but is not obliged to AGREE with you.

BTW, I'm all for thoroughness and transparency, but it is not always desirable to put in writing what REALLY happened at an OP.

In one case the in-house representative came late and totally unprepared for the OP, was fairly ignorant of the EPC, and hardly remembered what the invention was about. The OP was interrupted at least half a dozen times to allow him to try to raise someone at the head office on the phone, unsuccesfully. He did not have a mobile, so I had to accompany him to another room. Long-distance calls could not be dialed from that area, even with my personal PIN code, so I had to plead every time with the switchboard attendant. We ended up granting something around 4PM, essentially because everyone had to go home or catch a train. The minutes hardly reflect any of this painful exercise. I did manage to have the last word in that case.

In another case the representative confessed at the outset of the OP of being a total ignoramus in the invention's technical field, and quite literally begged the division for help. It suddenly became clear why the procedure went nowhere for years. The division ended up dictating the text of claims it considered allowable, and explained why. How can you decently express this in minutes?

Roufousse T. Fairfly said...

Maxdrei:

One Chairman, retired by now I suppose, would announce on each resumption of proceedings how his Board was "minded to decide" on that issue but that we would now move on to the next issue.

Like another observer noticed, this is fairly standard practice in both first and second instances, and the usual expression employed is "the division is of the opinion that", which is hardly weaker than "minded to decide". The word "decide" should best be avoided until its time comes.

Many years ago I witnessed a Q&A at the end of an interesting presentation to examining staff by a DG3 member. I was eager to see how the boards arrived at decisions, and was relieved to learn that their members are recruited amongst members of the human race, and that differences of opinion arose there too. The orator commented about a visit paid by EPO BoA to the BPatG (or was it the BGH?), and it seems that consensus is an issue there too. The German solution is apparently to simply strike out any litigious paragraphs in the decision.

Minutes were a topic too, and the member indicated that the boards had a preference for detailed ones. It was acknowledged that boards too could need to issue in the future more detailed minutes with the introduction of the (then new) Review procedure.

For the Review case I don't know how this could change the final outcome. Would you really expect the Board to change its mind, even after formally hearing the arguments on IS? What I understand from this patent is that it's about filleting fish that came straight out of the water.

MaxDrei said...

This "right to be heard" is all very well, but what does a poor chairman do, when a representative (or a team of representatives) comes to the idea that, the longer the proceedings go on, the better the chances for his client of salvaging something from the proceedings.

Nominally, the Chairman is in charge, but faced with a representative who is adamant that, so long as he has the floor, he has a perfect right to continue till he has finished saying all that he wants to say, what does one do? The clock is ticking, and there are still 99 auxiliary requests to be discussed.

It is not such a rare event, that the n-th auxiliary request succeeds, even though it is immaterially different from the just refused (n-1)th auxiliary request. Request fatigue? And would that be an encouragement to representatives to stack up even more auxiliaries, in all their upcoming OP's? Roufousse, are you there today?

Anonymous said...

In one of my first OPs the proceedings started by the chairman announcing that they had already decided the question of X and would I address Y. My protest that I wished to present arguments about X was met by my being told that this would only unnecessarily prolong the proceedings as the point X had already been decided.

So much for the right to be heard. Naturally, the exchange was not minuted, and I had no-one else to corroborate my version of what happened at the subsequent appeal.

I wonder if things would have turned out differently had there not been 5 people to attest what had happened? The moral seems to be to take a team with you if the case is important, but this does of course have costs implications for UK practitioners.

Meldrew said...

And much would be helped if oral proceedings were recorded.

Recording facilities are cheap, and perhaps knowing that there was a recording of the proceedings would reduce the incidence of attorneys not knowing their brief, and examiners and board members being "selective" in the content of the minutes.

Recordal might also reduce the cost of appeal and review proceedings significantly, as decisions would be based on clear evidence rather than conflicting recollections.

However, common sense is not common in some circles, so perhaps this suggestion will not be heard.

Anonymous said...

This is getting big so I had to split in 2 parts:

>> Procedural economy, it seems, only comes into play when it is to the advantage of the EPO. I am having serious problems about this currently where it seems the examiner wants to kill the application by strangling our client financially as the process has been hideously protracted and correspondingly costly.

> I see a contradiction here. If your second sentence is true, then procedural economy was achieved neither for the EPO nor for your client. I would submit that it could also be interpreted that you have been rather successful over the years in preventing the division from reaching an unfavorable decision.

There is no contradiction here. I have discussed the matter with the examiner, getting a promise for comments back. And I wait. And I wait some more. Then I call the examiner again and I am informed that the examiners have discussed the case and arrived at a conclusion. They just didn't return my call and actually informed me of this. Then more telephone calls, getting more promises for a technical discussion. And I wait and I wait some more before again calling the examiner who now finds these discussions "unproductive". I feel like exploding but remain polite.

Your second assumption is not correct, rather I have spent a lot of effort to get a decision as quickly as possible.

> You can lay much blame at the feet of examiners, but "strangling a client financially" is certainly not one of their pet vices.

Twice recently I have received official communications where the examiners fail to address my arguments and instead encourage me to drop the case, in the interest of economy but of course.

>> Killing the application by issuing an official rejection will be rather complicated for them.

> Do you mean to say the case is now so messed up that the examiner is no longer sure where to begin (123(2)? 83? 84? 54(2)? 56? ...)? Or that there are dozens of outstanding requests?

The file is rather extensive but has not yet reached the stage of messiness. Those few times we were able to inject a technical argument in sideways during telephone conversations we have been able to whittle down the various issues. Nevertheless there are many issues left where the examiner has not addressed our arguments in a meaningful way. To issue a rejection they will have to address these and our arguments are numerous, long and extensive. Unless they were to pull the classic USPTO examiner stunt of just dismissinbg everything with a "not persuasive" statement (which I do not expect), the decision will have to be on the massive side.

>> I can very well imagine that debate behind closed doors.

> Can you really?

Oh yes.

Anonymous said...

Part 2:
>> Since the examiner made promises to discuss the issues and then refused to do so

> Are you referring to the 1st examiner, his summons, the chairman, or the division as a whole? If this were true, you'd have a solid case for a severe procedural violation of your right to be heard (Art. 113).

The first examiner. And this happened several times.

> Or is it that the debates were concluded once it was found that your requests clearly did not meet the EPC requirements without having to go through all objections?

I take my duty towards my clients very seriously and I am not letting personal prestige getting in the way. We have therefore involved two separate very experienced external professional representatives to go through our work and we did that at our own expenses. Both agreed on our views.

>> I am worried the minutes to be issued will not show what will actually take place.

> Is this a past or future OP? The OP is your chance to address the division as a whole, and your main interlocutor is the chairman, not the 1st examiner. It is his duty to make sure that your right to be heard is respected. It is yours to state your case as clearly as possible, and request items to be recorded in the minutes.

This is a future OP. All three examiners were supposed to review the file before setting the date for OP and once more on maintaining the date after further replies were sent by us. The first examiner states the two others agreed with him. And all three signed the documents.

> The division must LISTEN to you, but is not obliged to AGREE with you.

At this stage in the process I feel this will be a major improvement.

> BTW, I'm all for thoroughness and transparency, but it is not always desirable to put in writing what REALLY happened at an OP.

Considering the record so far I am deeply concerned that we do get to present our case and that whatever happens will go on record. I have never experienced a case go so completely off the tracks like this one.

> In another case the representative confessed at the outset of the OP of being a total ignoramus in the invention's technical field, and quite literally begged the division for help. It suddenly became clear why the procedure went nowhere for years. The division ended up dictating the text of claims it considered allowable, and explained why. How can you decently express this in minutes?

I have spent years with this client in everything from drafting to litigation. My preparations include those for appearing in court. I would like to think I am prepared. In the case I should be mistaken we have prepared a major team to appear at the OP. My client has the financial muscle to continue the process and I have my reputation on the line and am willing to fight for my client every inch of the way.

Anonymous said...

Intersting discussion. Very informative. More on oral proceedings please.

As an aside, it was decent of the examiner above to submit copies of 2 granted patents in his response, which would have helped the applicant assess potential infringement. Question is, was the representative obliged to consider these patents and alert the client to a potential infringement issue, if their only role was to deal with prosecution of the case?

A comment such as "may be worth looking at these if you do a clearance check" would be helpful and not time consuming, but do we not get what we pay for in life?

MaxDrei said...

I must say one thing: this thread is throwing useful light on what chairmen of EPO oral proceedings have to cope with, in the course of a typical day's work.

Anonymous said...

> Question is, was the representative obliged to consider these patents and alert the client to a potential infringement issue, if their only role was to deal with prosecution of the case?

In my books, yes we should. One of the things that I like about this line of work is the high ethical standards that is the norm. Some times my duty is to inform the client about issues that do not make for billable hours such as when publication rather than patent application is the best solution for the client.

> A comment such as "may be worth looking at these if you do a clearance check" would be helpful and not time consuming

I go a lot further than that. With a Power of Attorney in hand I feel my duty to the client goes a long, long way. My experience is that such alerts cannot be invoiced but after a while, sometimes more than a year later, it can generate follow-up work that is paid and also tends to be extra interesting.

> but do we not get what we pay for in life?

Around here we have an expression that fate catches up with everyone.

In this line of work we are also paid in reputation which in turn leads to more work as well as unusual and interesting work.

Anonymous said...

"cope with"? Hardly being shot at! The pressure seems to be on getting a timely finish to get off home. No rushing for that budget flight with an unhappy/upset/irate client to deal with when they get home.

Anonymous said...

A client once refused to pay for an update on the progress of a 3rd party application because it had lapsed through non-payment of fees and he believed he had been advised (by a predecessor) the case had died and there was no ongoing work. He complained just after the application was re-instated by late-payment, which came to light when I looked into the case.

The previous advice had been clear as to the possibility of reinstatement so the client had misunderstood. Now he just didn't want any more expense and he was content believing the application was dead. We dropped the charges, but should he have been advised that the application was alive once more?

I won't say whether I did or did not, but sometimes lessons are best learnt the hard way.

Anonymous said...

> this thread is throwing useful light on what chairmen of EPO oral proceedings have to cope with

Are you thinking of nearly exploding representatives having been misled, enraged applicants paying through their noses, scared licensees fearing for the exclusivity, or do you mean first examiners out of control?

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