EBoA’s videoconference decision keeps us guessing

Case G1/21 has gathered significant interest from the patent attorney community because it relates to the issue of whether holding oral proceedings via videoconference is compatible with the key concept of the right to be heard under A.113 European Patent Convention (EPC), even if one or more parties to the proceedings have not given their consent.

The rise of oral proceedings via videoconference during the pandemic has led to all examination, opposition and appeal hearings before the European Patent Office (EPO) being heard using Skype or Zoom, a format which some believe may be disadvantageous.

The present referral comes from a case (T1807/15) before the Board of Appeal with this exact situation, in which a party disagreed with the use of videoconference for the oral proceedings.

The oral proceedings to decide the issue were held by videoconference themselves and took place on July 2. The Enlarged Board of Appeal (EBoA) issued its short decision on July 16 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 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.”

While this decision confirms that the EPO Boards of Appeal can enforce oral proceedings by videoconference in an emergency situation, it does not answer the arguably more pressing question of whether they can enforce oral proceedings by videoconference at any other time and does not address hearings held by the Examining Division or Opposition Division.

Therefore, the situation of future hearings is still not certain. The new Article 15a of the Rules of Procedure of the Boards of Appeal states that the board may decide to hold oral proceedings via videoconference if it considers appropriate to do so. This rule introduced in April 2021 still stands, and notably does not refer to a state of emergency.

The full written decision with reasoning is expected to issue soon and may provide more clarity as to why the entirety of the question as referred to the EBoA was not answered and may indicate whether oral proceedings by videoconference are likely to persist post-pandemic.

For more on this see:  EPO’s G1 /21 videoconf hearing postponed and  Virtual hearings: legality goes online

Douglas Drysdale is a partner at HGF. He can be contacted at:  ddrysdale@hgf.com

Ellie Purnell is a patent director at HGF. She can be contacted at:  epurnell@hgf.com