The G1/ 21 decision: first impressions

The keenly-anticipated decision is not the resounding endorsement of remote hearings that the EPO may have wished for, reports Andrew McKinlay of Appleyard Lees.

The European Patent Office’s (EPO) highest judicial body, the Enlarged Board of Appeal (EBoA), has released its order in the case G1/21. The EBoA had been asked to rule on the legality of the use of videoconferences in EPO oral proceedings before the boards of appeal, where not all the parties had consented to it. 

The EBoA’s order reads as follows: “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 European Patent Convention 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 EBoA limited its judgment to circumstances that can be considered a ‘general emergency’, such as the COVID-19 pandemic.”

Notably, the EBoA limited its judgment to circumstances that can be considered a “general emergency”, such as the COVID-19 pandemic. It appears that the EBoA has declined to give any more general guidance in relation to the legality of holding videoconference oral proceedings without consent of the parties.

Although we will have to wait for the full written reasons of the judgment before we draw any firm conclusions, the decision could well have an impact on the conduct of oral proceedings in examination and opposition proceedings beyond the pandemic.

Videoconference has been mandatory in examination and opposition throughout the pandemic, and the expectation has long been that the management of the EPO would look to continue to conduct proceedings in this way after the pandemic ends.

This decision looks unlikely to be the ringing endorsement of that approach that will have been hoped for by the EPO management and other key stakeholders who are broadly in favour of the convenience, reduced environmental impact, and reduced cost associated with videoconference hearings.

Andrew McKinlay is a senior associate at Appleyard Lees. He can be contacted at Andrew.mckinlay@appleyardlees.com

Today’s top stories

Dabus: Australian judge says non-humans can be inventor

Thousands of authors ask UK to uphold IP exhaustion laws