Enlarged Board of Appeal of EPO on G 1/21 "videoconference"

On July 16, 2021 the Enlarged Board of Appeal of the European Patent Office (EPO) has issued an order in case G 1/21. The Enlarged Board of Appeal found that oral proceedings before the Boards of Appeal can be held by videoconference even without the consent of the parties during the period of general emergency impairing the parties’ possibilities to attend in-person or proceedings at the EPO premises.

Case G1/21 is based on the question that has been referred to them by the Technical Board of Appeal 3.5.02 in their interlocutory decision of March 12, 2021 in the case T1807/15 which reads:

“Is the conduct of oral proceedings in the form of a videoconference compatible with the right to oral proceedings as enshrined in Article 116(1) EPC 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 question has been raised in response to the Administrative Council of the European Patent Organization having approved new Article 15a Rules of Procedure at the Boards of Appeal (RPBA) 2020, which entered into force on 1 April 2021 reading:

“Oral proceedings by videoconference

(1) The Board may decide to hold oral proceedings pursuant to Article 116 EPC by videoconference if the Board considers it appropriate to do so, either upon request of a party or of its own motion.

(2) Where oral proceedings are scheduled to be held on the premises of the European Patent Office, a party, representative or accompanying person may, upon request, be allowed to attend by videoconference.

(3) The Chair in the particular appeal and, with the agreement of that Chair, any other member of the Board in the particular appeal may participate in the oral proceedings by videoconference.”

Article 15A RPBA 2020 opens the door for the Boards of Appeal at the EPO to summon to oral hearings by videoconference.

The order issued by the Enlarged Board of Appeal 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 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.”

Very notably, the Enlarged Board of Appeal limit their answer to the more broadly formulated referral question to oral proceedings during a period of general emergency impairing the parties’ possibilities to attend in-person oral proceedings at the EPO premises, and to oral proceedings before the Boards of Appeal (second instance). Hence, the Enlarged Board of Appeal has limited their answer to the specific context underlying the referral case. The Enlarged Board of Appeal’s answer neither addresses the question, whether the consent of parties to oral proceedings by videoconference is required when there is no period of general emergency, nor does the answer touch on oral proceedings related to examination and opposition before the EPO’s departments of first instance.

The order clarifies that the practice of the Boards of Appeal to summon for oral by videoconference proceedings in appeal matters even without the consent of the parties based on new Article 15a RPBA 2020 is justified in the ongoing COVID-19 pandemic. Noting that Article 15a RPBA 2020 allows the Boards of Appeal to summon to oral proceedings by videoconference “if the Board considers it appropriate to do so, either upon request of a party or of its own motion”, it will have to be awaited whether the reasons to be issued by the Enlarged Board of Appeal in case G1/21 will provide additional guidance as to when Boards should find it appropriate to hold proceedings by videoconference or regarding the compliance of Article 15a RPBA 2020 with Article 116 EPC in general.