G1/21 – Enlarged Board of Appeal issues decision on appeal oral proceedings by videoconference
The Enlarged Board of Appeal (the highest appeal body at the EPO) has issued a decision on the legality of holding oral proceedings in appeal proceedings by videoconference, without the consent of the parties to the proceedings.
Owing to the COVID-19 pandemic, all examination and opposition oral proceedings began to be held by videoconference, unless there were serious reasons not to.
To clear a backlog of appeal oral proceedings, the EPO announced the Boards of Appeal could conduct oral proceedings by video conference if it “considers it appropriate to do so, either upon request by a party or of its own motion” (Article 15 RPBA).
Oral proceedings by videoconference before the Boards of Appeal could therefore be mandated even without the agreement of the parties.
This change was the subject of a referral to the Enlarged Board of Appeal (G1/21).
G1/21 is an appeal from T1807/15. T1807/15 concerned an appeal of the decision of the Opposition Division not to maintain EP1609239 in an amended form.
The respondent to T1807/15 requested for oral proceedings to be postponed, since in their view the case was not suitable for videoconferencing. The following initial question was consequently referred to the Enlarged Board of Appeal:
“Is the conduct of oral proceedings in the form of a videoconference 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?”
Citing the need to consider the context of the referral, the Enlarged Board of Appeal limited the scope of the referred question as follows:
“During a general emergency impairing the parties’ possibilities to attend in-person oral proceedings at the EPO premises, is the conduct of oral proceedings before the boards of appeal in the form of a videoconference compatible with the EPC if not all of the parties have given their consent to the conduct of oral proceedings in the form of a videoconference?”
In reaching its decision, the following questions were considered:
(1) What are “oral proceedings”?
The Enlarged Board of Appeal found that the wording of the EPC should be given primacy when considering whether or not oral proceedings by videoconference are oral proceedings.
Since “oral” meant “by the spoken word, by speech, by word of mouth”, there was no basis for limiting the scope of oral proceedings to only those held in person. Oral proceedings by videoconference are oral proceedings within the meaning of the EPC.
(2) Does the holding of oral proceedings by videoconference infringe the parties’ right to be heard?
The limitations of videoconferencing (e.g. the additional technological burden on the parties) were acknowledged by the Enlarged Board of Appeal. In the opinion of the Enlarged Board of Appeal, in-person proceedings were considered to be the “optimum format”.
However, they found that:
- Oral proceedings by videoconference do not (normally) lack any “essential features” of in-person oral proceedings;
- The extent to which visual cues such as the body language of the board members could be assessed in oral proceedings by video conference was not inadequate, varying only “by degree” when compared to in-person oral proceedings; and,
- The presentation of arguments orally is, to an extent, only complementary to the written submissions filed before oral proceedings anyway.
“the limitations currently inherent in the use of video technology can make it suboptimal as a format for oral proceedings […] but normally not to such a degree that a party’s right to be heard […] is seriously impaired”.
(3) Can oral proceedings by videoconference be imposed on a party? Do the parties have a right to oral proceedings in person?
In contrast to oral proceedings by videoconference, the Enlarged Board of Appeal found that in-person oral proceedings “without doubt” comply with the parties’ right to be heard.
As such, they concluded that in-person oral proceedings should be the default option, and should only be denied to the parties for “good reasons”.
To deny a party the right to in-person proceedings before a Board of Appeal, there must be case-specific circumstances limiting or impairing the parties’ ability to attend in person proceedings at the EPO. Administrative issues such as the availability of conference rooms or interpretation facilities, or intended efficiency gains, would not be considered capable of limiting or impairing the ability of the parties to attend.
T1807/15 was appealed during the COVID-19 pandemic when in-person proceedings were not an option. Oral proceedings had already been postponed once, and continued postponement would have led to further delay in reaching a decision on the appeal. In view of these circumstances, the Enlarged Board of Appeal considered it just to overrule the wish of the respondent, and to hold the oral proceedings by videoconference.
In answer to the referred question, the Enlarged Board of Appeal gave the following order:
“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.”
The order gives legal basis for those appeal proceedings held by videoconference during the COVID-19 pandemic without the consent of the parties, but makes no reference to “good reasons” being required to justify denying in-person proceedings to parties to oral proceedings.
In view of the reasoning set out in the decision (and COVID-19 restrictions permitting), going forward it seems likely that the EPO will not frequently force the holding of appeal oral proceedings by videoconference without the consent of the parties involved.
This article is for informational purposes only and does not constitute legal advice. Please, therefore, get in touch with your usual Forresters Attorney if you need further advice.