Oral proceedings by videoconference are oral proceedings within the meaning of Article 116 EPC and, although not fully equivalent to oral proceedings held in person, normally do not infringe a party’s right to be heard or the right to fair proceedings.

Nevertheless, a hearing in person is the “gold standard” – parties can only be denied this option for good reasons.

Background  

By interlocutory decision T 1807/15 Board 3.5.02 referred the following question to the Enlarged Board of Appeal (EBA):

“Is the conduct of oral proceedings in the form of a videoconference compatible with the right to oral proceedings as enshrined in Article 116(1) EPC if not all of the parties to the proceedings have given their consent to the conduct of oral proceedings in the form of a videoconference?”

In July, the EBA issued the order of the decision, as reported in our briefing note. The order of the decision stated that:

“During a general emergency impairing the parties’ possibilities to attend in-person oral proceedings at the EPO premises, the conduct of oral proceedings before the boards of appeal in the form of a videoconference is compatible with the EPC even if not all of the parties to the proceedings have given their consent to the conduct of oral proceedings in the form of a videoconference.”

We now have the reasoning behind the order from the Board.

Scope of the referral

 The EBA was of the opinion that the question referred was broader than necessary in two respects.

Firstly the EBA considered that in the referring appeal case T 1807/15 the “issue is whether the Board can summon the parties to oral proceedings by videoconference without their consent, not whether a department of first instance can do so”. Secondly, the EBA determined that the issue of oral proceedings by videoconference and the role of the agreement or consent of the parties has “arisen during and as a result of the COVID-19 pandemic”.

On the other hand the EBA disagreed with the referring Board that the referral could be limited to the question of whether holding oral proceedings by videoconference without the consent of the parties is compatible with Article 116 EPC such that there was no need to address the matter of the compatibility of oral proceedings by videoconference with Article 113 EPC (right to be heard). Rather the EBA stated that “in order to clarify the legal framework for holding oral proceedings by videoconference it is appropriate also to consider the compatibility of this format with Article 113 EPC”. The EBA noted that the right to be heard is the fundamental principle and the right to oral proceedings is an expression of that principle.

Therefore the EBA reformulated the referred question as follows:

 “During a general emergency impairing the parties’ possibilities to attend in-person oral proceedings at the EPO premises, is the conduct of oral proceedings before the boards of appeal in the form of a videoconference compatible with the EPC if not all of the parties have given their consent to the conduct of oral proceedings in the form of a videoconference?”

The reasoning of the EBA

The EBA reasoned that there is no basis in the term “oral”, as defined in the Oxford English Dictionary, to limit the scope of “oral proceedings” to in-person hearings in a courtroom before the deciding body. The EBA thus concluded that oral proceedings in the form of a videoconference are oral proceedings within the meaning of Article 116 EPC. Thus the rules and practice applicable to oral proceedings in person also apply to oral proceedings by videoconference.

However, whilst the EBA were of the view that videoconference can ensure the essential features of oral proceedings, they recognised that communication by this means is less direct and subject to limitations. Thus the EBA determined that “communicating via videoconference cannot, at least for the time being, be put on the same level as communicating in person” and that in-person oral proceedings are, for now, the optimum format.

Nevertheless, even if videoconference format has shortcomings, the EBA considered that it provides parties with an opportunity to present their case orally; such that when taken in combination with the comprehensive written submissions that are a necessary part of proceedings before the EPO, videoconference is normally sufficient to comply with the principles of fairness of proceedings and the right to be heard.

With regard to the question of whether oral proceedings by video conference can be imposed on a party, or in other words whether a party has the right to oral proceedings in person; the EBA noted that it is a party’s right to request oral proceedings under the EPC. Therefore they concluded that it is also logical that the choice of format for the oral proceedings can be made by the party who requested them. Furthermore, because the EBA was of the opinion that a hearing in person is the optimum format, i.e. the gold standard, in-person oral proceedings should be the default option. Parties should only be denied this option for good reason.

The EBA made a number of observations with regard to the reasons that could justify denying a party its wish to have oral proceedings held in person:

Firstly, there must be a suitable, even if not equivalent, alternative. As explained above, the Enlarged Board holds the view that a videoconference normally provides the basic conditions for an opportunity to be heard and to present a case. Therefore, unless a party can provide sufficient reasoning that videoconference is not suitable for a particular case, this first criteria appears to be met.

However, there must also be circumstances specific to the case that justify the decision not to hold the oral proceedings in person. The decision of the EBA considered that these circumstances should relate to limitations and impairments affecting the parties’ ability to attend oral proceedings in person at the premises of the EPO. In the case of a pandemic, such circumstances could be general travel restrictions or disruptions of travel possibilities, quarantine obligations, access restrictions at the EPO premises, and other health-related measures aimed at preventing the spread of the disease.

Ultimately the EBA considered that the decision of whether good reasons justify a deviation from the preference of a party to hold the oral proceedings in person must be a discretionary decision of the board of appeal summoning the party to the oral proceedings.

Summary

Whilst the EBA reformulated the question to specifically address the situation during a general emergency such as the COVID-19 pandemic, the observations provided by the EBA in their reasoning appear to be more wide ranging and allow parties to request the format that they prefer for oral proceedings. Oral proceedings by videoconference are considered to be a suitable alternative to oral proceedings in person, but if a party requests oral proceedings to take place in person this may only be denied with good reason.