The EPO's Enlarged Board of Appeal (EBA) has been considering in case G1/21 the legality of holding oral proceedings by video conference without the consent of the parties (see our earlier reports here, here, here and here). Following the postponed oral proceeding on Friday 2 July 2021, the EBA has now issued an order stating:
"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."
Oral proceedings before the Boards of Appeal by video conference without the consent of the parties are therefore legal at the present time, due to the pandemic constituting a "general emergency impairing the parties' possibilities to attend in-person oral proceedings at the EPO premises". The wording of the EBA's answer also suggests that there is no basis for challenging the validity of already-issued Board of Appeal decisions where oral proceedings were held via video conference during the pandemic without consent of all parties.
Whilst the EBA has provided some clarity, it is disappointing that the EBA declined to answer the broader question originally posed, and instead decided to limit their answer to oral proceedings before the Boards of Appeal during a period of general emergency. It is possible that the EBA reformulated the question narrowly as a result of a lack of consensus on the panel around the answer to the broader question. In any event, two important questions remain unanswered as a result:
- Is it legal to hold oral proceedings by video conference without the consent of the parties when there is not a general emergency impairing attendance at in-person oral proceedings?
- Are oral proceedings before departments of first instance, and in particular examining and opposition divisions, legal without the consent of the parties during a general emergency impairing attendance at in-person oral proceedings?
In relation to point 1, one might infer that there is no overall legal block on video conference oral proceedings without the consent of the parties. Most of the argumentation centred around whether such proceedings were legally acceptable bearing in mind the law as worded. If video conference proceedings were truly incompatible with the law, then such proceedings would seem not to be acceptable even in an emergency. We await the full decision to see how the reasoning supports the idea of the EPC allowing video conference proceedings in an emergency, and whether the reasoning implicitly answers the question of their allowability in non-emergency times.
In relation to point 2, the EPO has since stated that "it will continue with the conduct of oral proceedings by VICO in accordance with its present practice" while the pandemic persists. The rules are of course the same for the boards of appeal and first instance departments - all are bound by the EPC.
The written decision providing the EBA's reasoning is yet to be issued. It will be interesting to see whether the written decision provides any further discussion of the above points. If not, then it seems likely that the broader question of video conference oral proceedings without the consent of all parties may well need to be revisited by the EBA before too long. In the meantime, users of the European patent system may feel a certain degree of frustration that the EBA did not take this opportunity to provide legal certainty in relation to this very important issue.
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