News

Appeal Oral Proceedings by Video Conference Referred To EPO Enlarged Board of Appeal

Posted: February 11, 2021

It has been reported that an EPO Board of Appeal has referred a question to the EPO Enlarged Board of Appeal querying the legality of holding Appeal oral proceedings by video conference without the consent of all parties.

Last year, in view of the COVID-19 pandemic, the EPO began holding examination and opposition oral proceedings by video conference. Parties to the proceedings may request that oral proceedings are not held by video conference if there are serious reasons not to, but now the default position (until at least 15 September 2021) is that all examination and opposition oral proceedings are held by video conference.

Before the EPO Boards of Appeal, oral proceedings have been held by video conference where all parties agreed to do so, but the EPO announced in December 2020 that, from 1 January 2021, Boards of Appeal may conduct oral proceedings by video conference even without the agreement of the parties, as has been made clear in new Article 15a RPBA, which permits a Board of Appeal to hold oral proceedings by video conference if “the Board considers it appropriate to do so, either upon request by a party or of its own motion”. However, Article 15a RPBA only comes into effect from 1 April 2021.

We understand that the referral to the EPO Enlarged Board of Appeal was requested by a party at the oral proceedings following the proceedings being converted to a video conference without consent of the parties. The exact question(s) referred to the Enlarged Board of Appeal remain to be seen and it will likely be some time before a decision is issued, but in the meantime, we anticipate that Appeal hearings will take place by video conference only if all parties consent, and any Appeal hearings where a party has not consented will be postponed, pending the outcome of the referral or the easing of travel restrictions to permit an in-person hearing.