Appeal Oral Proceedings by Video Conference
The EPO has reaffirmed that Appeal Board oral proceedings can be held by videoconference despite disagreement from one or both parties during a general emergency. This still appears to be considered a temporary measure until restrictions that have arisen due to the pandemic fully subside.
As a result of the significant disruption caused by the COVID-19 pandemic the EPO announced on 1 January 2021 that oral proceedings before the Board of Appeal could be conducted using videoconferencing (ViCO) without the agreement of the parties concerned. This has been made clear in the new Article 15a RPBA adopted by the Boards of Appeal Committee and allows the Board to decide to hold proceedings via ViCO if the Board considers it appropriate to do so, either upon request by a party or of its own motion.
In case T1807/15, although neither the proprietor nor the opponent consented, the Board of Appeal maintained the summons to oral proceedings in videoconference form. As a result, the following question was referred under Article 112 EPC to the Enlarged Board of Appeal as case G1/21. The question being:
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?
This question was found to be too broad and that the question was reformulated to be:
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 Enlarged Board of Appeal of the European Patent Office issued the order of its decision in case G 1/21 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 behind this decision can be summarised by the following points:
- Oral proceedings by videoconference are sufficient to comply with Article 113(1) EPC and meet the requirements of Article 116 EPC for parties to be heard orally;
- Oral proceedings by videoconference are currently suboptimal compared to in-person hearings which represent the “gold standard”;
- While oral proceedings may be held via video conferencing without consent, there must be circumstances specific to the case that justify the decision not to hold them in person, e.g., the disruption of travel, health-related measures etc. and cannot be influenced by administrative reasons, e.g., availability of conference rooms at the EPO;
- The above decision applies only to Board of Appeal Oral Proceedings while the pandemic lasts, it does not affect oral proceedings at the first instance; and
- The decision did not address whether oral proceedings by videoconference may be held without the consent of the parties in the absence of a period of general emergency.
Consequences of the Decision
While it appears that the Board of Appeal may, at their discretion, hold oral proceedings by video conference without the parties’ consent, this still appears to be considered a temporary measure until restrictions that have arisen due to the pandemic fully subside. Once this happens, in person oral proceedings will likely remain the default when conducting proceedings before the Board of Appeal.
It thus appears that the format that oral proceedings before the Board of Appeal will take will still depend on the “good reasons” given by the Board of Appeal or the parties involved. At present, the lingering consequences of the pandemic appear to be sufficient to constitute a “good reason” for the Board of Appeal holding oral proceedings by videoconference. Conversely, “good reasons” given by the parties to proceedings may still lead to the postponement of Board of Appeal proceedings until they can be held in person.
In the meantime, we await to see how such proceedings will be handled once the period of general emergency, caused by the pandemic, comes to an end.