Insights European Patent Office Board of Appeal refuses to postpone oral proceedings due to Covid-19 travel restrictions because the request was made too late


In a case concerning an appeal against the decision of the examining division refusing a European patent application for a cellular communications network method on the ground of lack of inventive step, the appellant, Qualcomm Incorporated, made a request to postpone the oral proceedings scheduled for 1 December 2020. The request was received by the EPO on the evening of 25 November 2020. The Board of Appeal became aware of it on 26 November 2020, i.e. three working days before the oral proceedings were due to commence.

Qualcomm, which is based in Ireland, cited as a serious reason the travel restrictions in place caused by the ongoing Covid-19 pandemic and the fact that Ireland was considered to be a risk area.

On 27 November, the Board emailed Qualcomm to say that it refused Qualcomm’s request because the Covid-19 travel restrictions, and Ireland being considered an international risk area, had been known about since at least the end of October 2020. The Board said that parties were expected to consult the publicly available list of international risk areas, as categorised by the Robert Koch Institute, to determine and inform the Board in good time whether they would attend the arranged oral proceedings. The Board said that Qualcomm should either have requested a postponement earlier or arranged for an attorney who was not subject to travel restrictions to represent the case.

The Board offered to hold oral proceedings by videoconference on either 1 or 2 December 2020 and asked Qualcomm to consent to this. The Board said that if Qualcomm did not consent, the proceedings would go ahead on 1 December as originally planned. Qualcomm declined to consent and made clear that it would not attend, but provided no explanation or justification for filing the request at such an unreasonably late stage, nor did it respond substantively to the Board’s reasons for refusing to postpone. Consequently, the Board said, it had no reason to reconsider its position.

Accordingly, the oral proceedings went ahead on 1 December in the absence of Qualcomm. The Board concluded that Qualcomm’s right to be heard had been respected. In any event, Qualcomm had not argued otherwise.

As for the substantive appeal, it was dismissed. (Case: T 0676/16 Qualcomm Incorporated (1 December 2020) — to read the judgment in full, click here).