The EPO's Enlarged Board of Appeal (EBA) is currently considering in case G1/21 the legality of holding oral proceedings by video conference without the consent of the parties (see our reports herehere and here). On Friday 2 July 2021, the postponed oral proceeding took place before the EBA.

The appellant (opponent) initially raised further objections to the composition of the board and requested a further postponement, but after some non-public discussion these requests were rejected.

The main issue of the legality of oral proceedings held by video conference without the consent of the parties involved was then discussed. The representatives of the President of the EPO argued that oral proceedings via video conference were equivalent to those held in person and that the discretion of the format for oral proceedings should lie with the department before which they are held. The appellant argued that the use of video conferencing had clearly not been envisaged when the EPC was drafted and as such that holding oral proceedings in this format without the consent of one or more of the parties would impinge upon their rights under Article 116 EPC.

Somewhat ironically, the chair of the EBA faced connectivity issues throughout the proceedings, which may have assisted the appellant's arguments on the limitations of a video conferencing format. Indeed, the appellant's arguments did seem to gain sympathy with at least some members of the EBA. However, as is usual before the EBA, the oral proceedings were closed without a final decision being issued. Rather, we can expect the EBA to issue a written decision in due course.

In view of the large number of cases the decision will affect, we expect the EBA to issue a decision as soon as possible. However, with the summer holiday period fast-approaching, it may still be a couple of months or more before the decision is issued.

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