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EPO Boards of Appeal: Press Communiqué on decision G 1/21 of the Enlarged Board of Appeal

October 28, 2021

28 October 2021: The Enlarged Board of Appeal of the European Patent Office today issued the reasons for its decision G 1/21 (Oral proceedings by videoconference) of 16 July 2021, in which it ruled that oral proceedings before the Boards of Appeal can, during a period of general emergency impairing the parties’ possibilities to attend in-person oral proceedings at the EPO premises, be held by videoconference even without the consent of the parties.

Background

The Enlarged Board of Appeal is the highest judicial authority under the European Patent Convention (EPC). Its main task is to ensure the uniform application of the EPC.

In response to the COVID-19 pandemic and the associated restrictions on travel and access to the premises of the European Patent Office, the technical prerequisites were created for conducting oral proceedings before the Boards of Appeal by videoconference. In some cases, oral proceedings were conducted by videoconference without the consent of the parties.

In its interlocutory decision of 12 March 2021 in case T 1807/15, Technical Board 3.5.02 referred the following question to the Enlarged Board of Appeal under Article 112(1)(a) EPC:

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:

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.

 Article 113(1) EPC provides:

The decisions of the European Patent Office may only be based on grounds or evidence on which the parties concerned have had an opportunity to present their comments.

Key considerations:

The Enlarged Board of Appeal considered the referred question to have been formulated more broadly than was necessary for the referring Board to decide the case before it. Accordingly, the Enlarged Board of Appeal limited the scope of the referral to

  • oral proceedings before the Boards of Appeal (as opposed to oral proceedings before the EPO’s departments of first instance) and
  • the specific context of the referral, a general emergency (i.e. the COVID-19 pandemic).

The Enlarged Board of Appeal held that oral proceedings in the form of a videoconference are oral proceedings within the meaning of Article 116 EPC and are normally sufficient to comply with the principles of fairness of proceedings and the right to be heard under Article 113(1) EPC.

The Enlarged Board of Appeal stated that the object and purpose of oral proceedings under Article 116 EPC was to give parties an opportunity to plead their case orally. A limitation to only in-person hearings in a courtroom before the deciding body could not be deduced from Article 116 EPC. At the same time, the Enlarged Board acknowledged that oral proceedings by videoconference cannot, at least for the time being, provide the same level of communication as is possible when all participants are physically present in the courtroom.

The Enlarged Board also assessed the role of the parties’ consent. In this context, it stated that in-person hearings were the optimum format. Parties wishing to have oral proceedings held in person could only be denied this option for good reasons by a discretionary decision of the board if the case was suitable for oral proceedings by videoconference and limitations and impairments affecting the parties’ ability to attend oral proceedings justified the decision not to hold them in person.

During a general emergency such as the COVID-19 pandemic, impairments affecting the parties’ ability to attend oral proceedings in person could constitute good reasons for denying their wish to have oral proceedings held in person. Such impairments could take the form of travel restrictions or disruptions of travel possibilities, quarantine obligations, access restrictions at the premises of the European Patent Office, or other health-related measures aimed at preventing the spread of the disease.

The Enlarged Board of Appeal also considered that, if during a pandemic oral proceedings by videoconference could only be held with the consent of the parties, a great number of cases would have to be postponed for an unknown length of time, which would seriously impair the administration of justice.

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.

Contact

Nikolaus Obrovski
Jeannine Hoppe
Spokespersons of the Boards of Appeal of the European Patent Office
boa-press@epo.org