Reasons of Decision Issued for Case G1/21 On Oral Proceedings by Videoconference Without Consent of All Parties
On October 28, 2021, the Enlarged Board of Appeal (EBoA) of the European Patent Office (EPO) issued the reasons for its decision G1/21 On Oral Proceedings by Videoconference Without Consent of All Parties. The reasons contain some additional information and reasoning which might impact the EPO case law development (and thus the future EPO’s practice) in cases outside these exceptional circumstances and maybe also in proceedings other than appeals, i.e., in first-instance examination or opposition proceedings.
In our OBWB Monthly Insights issue of July 2021, we presented the order for the decision in case G1/21 relating to 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. The order made clear that the EPO has the right to hold the oral proceedings by videoconference in appeal proceedings during the present pandemic or in any other future general emergency impacting the parties’ free movement. On October 28, 2021, the Enlarged Board of Appeal (EBoA) of the European Patent Office (EPO) issued the reasons for its decision G1/21. The reasons contain some additional information and reasoning which might impact the EPO case law development (and thus the future EPO’s practice) in cases outside these exceptional circumstances and maybe also in proceedings other than appeals, i.e., in first-instance examination or opposition proceedings.
In the case underlying the referral, the option of in-person oral proceedings was not available at the relevant time because of the COVID-19 pandemic. Excluding oral proceedings by videoconference, as was requested by the parties, would have meant postponing the oral proceedings for an unknown length of time. Moreover, in the case at issue, the oral proceedings had already been postponed once. Accordingly, the EBoA decided that “[d]uring 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.” A different decision would have caused delays in finalizing appeals in a great number of pending cases, which the EBoA considered unacceptable.
While the order for decision G1/21 did not explain the EBoA’s position on oral proceedings by videoconference outside a general emergency and, regardless of the circumstances, on oral proceedings in first instance, such as oral proceedings before examining divisions and opposition divisions, the reasons underlying the decision now clarify that, in the EBoA’s view, in-person hearings still remain, generally speaking, the optimum format. This view could be used by parties for challenging any EPO’s future decision of keeping on systematically conducting all oral proceedings in examination by videoconference when the COVID-19 pandemic is over and also any EPO’s future decision of further extending the pilot project for oral proceedings by videoconference before opposition divisions or making the pilot project permanent when the COVID-19 pandemic is over.
Indeed, not only the EBoA has stated that “[i]n terms of communication, in-person oral proceedings are for now the optimum format”, but also that they are “the gold standard” and that they “should be the default option.” In particular, it may be inferred from the EBoA’s considerations provided in the reasons that when parties wish to have oral proceedings held in person in times where no limitations or impairments affect their ability to attend oral proceedings and if the case at issue is not suitable for oral proceedings by videoconference, this option should not be denied in the absence of good reasons. The decision of the board, which is discretionary, should justify a deviation from the preference of a party to hold the oral proceedings in person. According to the EBoA, any administrative issues “such as the availability of conference rooms and interpretation facilities or intended efficiency gains” should not influence the decision.
Thus, on the basis of decision G1/21, it appears that any preference expressed by a party about the in-person format when the pandemic is over should not be systematically denied. This appears to leave some room to parties to successfully challenge any EPO’s future practice disregarding their preference for in-person oral proceedings when duly supported by reasons explaining why a videoconference is not suitable for a particular case.
