Mandatory remote hearings can continue, EPO rules


Rory O'Neill

Mandatory remote hearings can continue, EPO rules

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The European Patent Office (EPO) can continue to hold oral proceedings over videoconference without the consent of all parties, an appeals board has ruled. 

The legality of the practice was the subject of the much-anticipated G1/21 ruling handed down today, July 16 by the EPO’s enlarged board of appeal.

In April 2020, the EPO responded to the COVID-19 pandemic by piloting proceedings held exclusively over videoconference, which had previously only been done in “exceptional circumstances”.

The aim was to avoid a major backlog of cases building up while in-person proceedings were not possible due to public health restrictions. But when the EPO made videoconference hearings mandatory last November, some critics argued that the policy would impact parties’ right to a fair trial.

German electronics manufacturer Rohde & Schwarz raised a challenge to the legality of imposing remote hearings on parties who didn’t consent to them. The EPO’s enlarged board of appeal held oral proceedings in the dispute earlier this month—over videoconference—with the hearing being beset by technical issues.

Today’s decision finds that mandatory remote hearings are compatible with the EPC “during a general emergency impairing the parties’ possibilities to attend in-person oral proceedings”. The board has yet to issue its justification explaining the reasons for the decision.

The dispute can be seen as part of a wider debate on whether justice can be delivered remotely with the use of digital technology. A 2017 report by UK advocacy group Transform observed that “58% of respondents thought that video hearings had a negative impact on defendants’ ability to participate in hearings, and 72% thought that video hearings had a negative impact on defendants’ ability to communicate with practitioners and judges”.

But today’s news was welcomed by the UK Chartered Institute of Patent Attorneys (CIPA), which had previously lobbied in support of continued remote hearings.

“We appreciate the speed of delivery and that the immediate issue has been addressed. But we hope that, when the reasoned decision is issued, it will provide guidance into the matter post-pandemic. We fear that otherwise, we will see the broader issue revisited at this high level pretty quickly,” said CIPA president Alicia Instone.

The CIPA president said videoconference hearings had been a “essential lifeline for access to justice” during the pandemic: “The technology has come of age, has been shown to be fit for purpose, and has the added benefits of increased transparency, lower costs, reduced environmental impact and providing access to all regardless of physical mobility, personal circumstance and ability to travel.”

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EPO, videoconference, remote hearings, G1/21, Rohde & Schwarz, COVID-19