The Enlarged Board of Appeal (EBA) at the European Patent Office (EPO) has issued an order in proceedings for G 1/21 (see EPO Press Communiqué here). The EBA has confirmed that in the current circumstances, i.e. when parties cannot attend in-person, the boards of appeal can hold oral proceedings by videoconference (VICO), even if the parties do not agree to the use of VICO.
The EBA was asked (by Technical Board 3.5.02 in case T 1807/15) to answer the following more general question, not limited to the current circumstances or appeal proceedings:
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?
Oral proceedings were held in front of the EBA, using VICO, to discuss the question on 2nd July 2021. During those proceedings representatives of the EPO President encouraged the EBA to answer the question very generally, so that use of VICO without party consent would be affirmed as legal at any time in front of any department of the EPO.
However, the following order has been issued by the EBA:
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.
VICO use continues
The reasons for the decision have not been published yet. It was clear from the questions asked by EBA members during the oral proceedings though, that certain members had concerns that in normal circumstances it might be unfair to force parties to use VICO without taking their preferences into account. So it is not surprising that the EBA limited the order to “general emergency” circumstances, such as the current pandemic. Limiting the order to oral proceedings in front of the board of appeal is more surprising, since it means oral proceedings in front of the examining or opposition divisions, for example, may still be susceptible to challenge if they are held using VICO without the consent of all parties. Currently, the EPO is using VICO as the default for essentially all oral proceedings, and requires serious, acceptable, reasons if a party wishes to avoid use of VICO (see paragraph 7 of EPO Notice here).
Although the order is more limited than the EPO President might have liked, there is nothing in the order to cause the EPO to change its current practice. Therefore, we should expect VICO to be the default for oral proceedings at the EPO, at least whilst travel remains difficult. When the EBA publish the reasons for the order in due course, we will hopefully get a better understanding of the extent to which the EBA believes the EPO can more generally dictate the use of VICO for oral proceedings.