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G 1/21 – Oral proceedings as videoconference without consent of the parties?

In its referral to the Enlarged Board of Appeal of 12 March 12 2021, the Technical Board of Appeal in case T 1807/15 had raised the question whether the conduct of oral proceedings in the form of a videoconference is 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.

Nearly 50 amicus curiae briefs, as well as a statement by the EPO President arguing in favor of videoconferencing, underpin the importance of this referral. The relevance is based not only on the fact that, due to Covid-19-related contact restrictions, the EPO had recently established, at least temporarily, videoconferences as the standard for oral hearings (see our March 8, 2021 IP-News article). In addition, the EPO in fact drafted a legislative amendment to the Rules of Procedure of the Boards of Appeal on this subject in December 2020, which has been set in force since 1 April 1 2021. Therein, in Article 15a I, it is stated:

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 by a party or of its own motion.”

Accordingly, oral proceedings may be conducted as a videoconference even independently of imposed contact restrictions and against the will of the parties.

After the oral proceedings – conducted as a videoconference – the Enlarged Board of Appeal narrowed the referred question to comprise only oral proceedings before the Boards of Appeal and to situations of a general emergency. Finally, in the decision of July 17, 2021, it was stated:

“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.”

This decision left open the question of whether oral proceedings may generally be held by videoconference even outside such emergency situations. The reasons for the decision of the Enlarged Board of Appeal on case G 0001/21 were therefore eagerly awaited.

The reasons for the decision, dated 28 October 2021, now provide at least some indications as to the extent to which video conferences can generally be a suitable variant of oral proceedings. Accordingly, it was stated that oral proceedings in the form of a videoconference are oral proceedings within the meaning of Art. 116 EPC, which is normally sufficient to comply with the principles of fairness of proceedings and the right to be heard. However, a videoconference is considered suboptimal, which is why in-person hearings should still be the default option. This option can only be denied to the parties for good reasons, and in particular the decision should not be influenced by administrative issues, such as the availability of conference rooms or intended efficiency gains.

The decision’s reasoning thus at least provides involved parties with arguments as to why videoconferences for oral proceedings should not be conducted against the will of the parties without good reason. However, it remains to be seen how this decision will affect future practice after the Covid-19 pandemic.

Dr. Matthias Vogt / Dr. Reta Schinkel