Case G1/21 On Oral Proceedings by Videoconference Without Consent of All Parties
In the order of its decision in case G1/21 released on July 16, 2021, the Enlarged Board of Appeal (EBA) of the European Patent Office (EPO), which is the highest degree of jurisdiction of the EPO, has held that conducting oral proceedings before the boards of appeal in the form of a videoconference when at least one party does not give its consent to this form has to be considered compatible with the European Patent Convention (EPC) “during a general emergency impairing the parties’ possibilities to attend in-person oral proceedings at the EPO premises”.
As a consequence, even if a party to appeal proceedings refuses to give its consent, the oral proceedings, during the present pandemic or in any other future general emergency impacting the parties’ free movement, the EPO has the right to hold the oral proceedings by videoconference because this does not violate the EPC provisions, including that establishing the right to be heard.
Interestingly, the EBA decided not to take any position on oral proceedings by videoconference outside these exceptional circumstances and, regardless of the circumstances, on oral proceedings in first instance, such as oral proceedings before examining divisions and opposition divisions. In this regard, several of the 47 amicus curiae briefs filed in relation to the much broader question referred to the EBA (which related to the compatibility of oral proceedings by videoconference with the law regardless of the type of proceedings) pointed out that oral proceedings by videoconference may not be suitable for each and every case to be discussed in a hearing. However, should the (still unknown) reasoning of the EBA have at least indirect implications on oral proceedings held by videoconference before examining divisions, opposition divisions, receiving sections and the legal division, these implications and the extent thereof will have to be duly taken into account. We will report any additional relevant information once the text of the decision G1/21 is available.
