“Some patent attorneys in Europe object that the decision to make videoconference hearings at the Enlarged Board of Appeal mandatory [under certain circumstances] could deprive parties of the right to be heard.”
Oral proceedings before the EPO Boards of Appeal can be held by videoconference, even without the consent of the parties, during a general emergency, according to a July 16 decision by the EPO’s Enlarged Board of Appeal (G1/21).
The question about videoconferencing was referred to the EBA in March by a Technical Board of Appeal in Case T-1807/15.
The EPO introduced hearings by videoconference (generally held via Zoom) last year as a result of the pandemic and travel restrictions. Since January 2021, some oral proceedings have been conducted without the consent of the parties.
The EBA, which comprises members of the Boards of Appeal and judges from EPC member states, was asked to rule on whether this was compatible with the right to oral proceedings as enshrined in Article 116(1) of the European Patent Convention.
The EPO claims that videoconference hearings are necessary to manage the workload and ensure efficient delivery of justice during the pandemic. They also mean that parties throughout the EPC’s 38 member states can participate on equal terms, without having to travel to Munich or The Hague.
However, some patent attorneys in Europe object that the decision to make videoconference hearings mandatory could deprive parties of the right to be heard.
In an interlocutory decision on May 17, the EBA replaced two of its members due to partiality objections but rejected objections to two others. Oral proceedings before the EBA were held on May 28, but these were postponed to July 2, as some of the parties had not been sent all the papers.
On July 16, the EBA issued an order stating: “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 EBA’s decision does not address the legality of proceedings in circumstances other than a general emergency, nor those in examination and opposition (which are also currently being held by videoconference).
The full reasons for the decision are due to be published on the EPO website soon.
Oppositions by Videoconference
The EPO recently published data on oppositions by videoconference. It says that about 350 such hearings are now being held each month. The Office plans to continue using videoconference until at least January 31, 2022 and is holding a consultation to decide how to proceed beyond that.
The Office claims: “The transition to VICO was initially met with considerable reluctance and skepticism a year ago, but the benefits in terms of legal certainty, timeliness, accessibility and sustainability are now winning over many members of the patent profession.”
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