EBoA decides that EPO videoconferences are allowed without consent of parties in a ‘general emergency’

On 16 July 2021, the Enlarged Board of Appeal (EBoA) of the European Patent Office issued its decision in case G 1/21, which states:

 

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.

 

The EBoA is the highest judicial authority under the European Patent Convention (EPC), and its main task is to ensure the uniform application of the convention.

 

In response to the pandemic and the associated travel restrictions, new rules for conducting oral proceedings by videoconference before the Boards of Appeal were created in 2020.

 

From January 2021, oral proceedings by videoconference before the Boards of Appeal were in some cases conducted without the consent of the parties. Oral proceedings by videoconference were also held without the consent of the parties in examination and opposition proceedings before the EPO's departments of first instance.

 

The following question was referred to the EBoA:

 

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?

 

Article 116(1) EPC provides that oral proceedings shall take place:

• either at the instance of the European Patent Office if it considers this to be expedient; or
• at the request of any party to the proceedings.

 

However, the European Patent Office may reject a request for further oral proceedings before the same department where the parties and the subject of the proceedings are the same.

 

On 23 March 2021, the Administrative Council of the European Patent Organisation approved the following:

 

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.

 

The EBoA decision only applies to oral proceedings that are held during a period of general emergency which impairs the parties' ability to attend in-person oral proceedings at the EPO premises, and moreover are conducted specifically before the Boards of Appeal.

 

The Enlarged Board did however not address the questions of:

• whether oral proceedings by videoconference may be held without the consent of the parties in the absence of a period of general emergency
• whether oral proceedings by videoconference may be held without the consent of the parties in examination or opposition proceedings before the EPO's departments of first instance.

 

Click here for the EPO announcement.

 

This briefing is for general information purposes only and should not be used as a substitute for legal advice relating to your particular circumstances. We can discuss specific issues and facts on an individual basis. Please note that the law may have changed since the day this was first published in July 2021.