The EPO's Enlarged Board of Appeal (EBA) has today issued its written decision in case G1/21, which concerns the legality of holding oral proceedings by video conference without the consent of the parties. As previously reported (see here), the EBA issued an order (without detailed reasoning) in July 2021, which 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 the parties to the proceedings have given their consent to the conduct of oral proceedings in the form of a videoconference."
The current written decision sets out the EBA's reasons for coming to this conclusion.
In particular, the EBA considered that a hearing held by videoconference can be regarded as "oral proceedings" within the meaning of Article 116 EPC. While the EBA seemed to accept that those involved in drawing up the European Patent Convention (EPC) had "in-person" oral proceedings in mind, and may not have envisaged videoconference as an option, the wording of Article 116 EPC places no limitation on the format of the oral proceedings. The EBA felt it would be at odds with the purpose of the EPC, which aims to support innovation and technological progress, if formats for oral proceedings supported by technological progress were to be excluded. Further, given that the purpose of oral proceedings is to allow parties a chance to plead their case orally, it cannot have been the legislator's intent to exclude potential future formats that do indeed allow oral presentations to be made. The EBA also noted that if it were the case that a hearing held by videoconference is not "oral proceedings" within the meaning of Article 116 EPC, then this would have ramifications on the status of such hearings even if held with the consent of the parties.
The EBA then considered whether or not videoconference is equivalent to in-person oral proceedings, and if not whether it is nevertheless still suitable for conducting oral proceedings in the context of respecting the right to be heard under Article 113 EPC. The EBA's view on this was clear:
"[V]ideo conference cannot, at least for the time being, be put on the same level as communicating in person ... In terms of communication, in-person oral proceedings are for now the optimum format." (see reason 38)
Despite these reservations, the EBA went on to say that:
"Even if the videoconference format has certain shortcomings, it provides parties with an opportunity to present their case orally. In combination with the written part of the proceedings this normally is sufficient to comply with the principles of fairness of proceedings and the right to be heard." (see reason 40)
Notably, the EBA expressed doubt that ability to read body language was significantly impaired when hearings were conducted by videoconference.
Overall, the EBA felt that in-person oral hearings represent the "gold standard" and parties should only be denied this option for "good reasons" (see reason 45).
In terms of what might constitute "good reasons", the EBA considered that there must be circumstances specific to the case that justify the decision not to hold the oral proceedings in person, but rather by videoconference. A pandemic situation where oral proceedings cannot be held in person would constitute justification for a videoconference oral proceedings, because the only other option would be to postpone the hearing for an unknown length of time and thereby impair the administration of justice. The EBA also stated that the Board of Appeal holding the oral proceedings should have discretion to make the decision, and should also take into account whether there were any aspects of the case that made it inherently unsuitable for a videoconference hearing.
The EBA did not directly tackle the issue of oral proceedings by videoconference when the pandemic is over. However, the EBA indicated that "administrative issues such as the availability of conference rooms and interpretation facilities or intended efficiency gains" would not constitute "good reasons" for denying parties the "gold standard" of an in-person hearing. This would suggest that the EBA might not look favourably upon the EPO's default position of conducting all examining divisions hearings by videoconference, were that practice ever to be challenged. Similarly, if the EPO decides to continue conducting opposition division oral proceedings by videoconference without the consent of the parties once the pandemic is over, then challenges to that practice based on the reasoning of the EBA's decision would seem likely.
It will be interesting to see how the use of videoconferencing for oral proceedings at the EPO develops in view of the EBA's decision.
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