G1/21 – Order from Enlarged Board of Appeal
19
Jul
2021
Enlarged Board of Appeal endorses conduct of oral proceedings before the Board of Appeal by videoconference during a “general emergency”

As reported in our briefing note dated 29th April 2021, in its interlocutory decision of 12 March 2021 in case T 1807/15, Technical Board 3.5.02 referred the following question to the Enlarged Board of Appeal under Article 112(1)(a) EPC:

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?

Following the oral proceedings on 2nd July 2021, the Enlarged Board of Appeal of the European Patent Office issued the order of its decision in case G 1/21 on 16th July 2021 which states 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.

The reasoning of the Enlarged Board will be issued in writing in due course. It will be of interest to see if this defines terms such as “general emergency” and “impairing”.

Notably the order mentions only oral proceedings before the Boards of Appeal. Therefore, the order does not address the question of whether oral proceedings by videoconference may be held without the consent of the parties in examination or opposition proceedings before the EPO’s departments of first instance.

Nevertheless, the EPO advises that it intends to maintain its present practice and has stated that:  [i]n view of this, and given that the pandemic situation in the EPO Contracting States and worldwide still persists, the Office will continue with the conduct of oral proceedings by VICO in accordance with its present practice.

The Enlarged Board’s Order also does not address the question whether oral proceedings by videoconference may be held without the consent of the parties in the absence of a period of general emergency. Therefore how videoconference will be used post-pandemic remains to be determined.

In respect of oral proceedings before the Boards of Appeal, new Article 15a RPBA 2020, which entered into force on 1 April 2021 reads:

Oral proceedings by videoconference

  1. The Board may decide to hold oral proceedings pursuant to Article 116 EPC by videoconference if the Board considers it appropriate to do so, either upon request of a party or of its own motion.
  2. Where oral proceedings are scheduled to be held on the premises of the European Patent Office, a party, representative or accompanying person may, upon request, be allowed to attend by videoconference.
  3. The Chair in the particular appeal and, with the agreement of that Chair, any other member of the Board in the particular appeal may participate in the oral proceedings by videoconference.

Following the Order, it is clear that the Board may consider it appropriate to hold oral proceedings by videoconference during a general emergency; but, unless Article 15a RPBA 2020 is amended, a Board may also consider it appropriate to hold oral proceedings by video conference in the absence of a period of general emergency. Thus the question of whether  “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” will still require an answer.