The European Patent Office (EPO) was due to hear the referral in G1/21 on Friday 28 May 2021 concerning the question of whether the conduct of oral proceedings in the form of a videoconference is 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. Our previous update on this referral can be found here.
The UK Chartered Institute of Patent Attorneys (CIPA) has previously stated its support for videoconference oral proceedings, subject only to the underlying systems being fit for purpose (see here). The EPO President also provided comments on the referral in support of videoconference in advance of the hearing (see here).
Despite the composition of the Board already having been changed last month due to alleged partiality, in the oral proceedings held on Friday, the Enlarged Board heard and deliberated in a non-public forum for most of the morning on a further complaint regarding the partiality of the Board. The Enlarged Board decided late-morning that the oral proceedings could continue with the same composition. However, the appellant had further requested a postponement since they had only received formal notification of the President’s comments on 26 May 2021 i.e. two days before the scheduled oral proceedings. The appellant argued that their right to be heard would be violated if the proceedings continued without postponement since they had not had sufficient time to review the President’s comments with their client and provide comments in reply.
After deliberation, the Enlarged Board set the deadline of 25th June 2021 for the appellant to file their comments and the proceedings were closed. Oral proceedings can be expected to be re-scheduled for shortly after this date given the importance of the decision.
Meanwhile, until the Enlarged Board of Appeal announces its decision, oral proceedings before EPO examining and opposition divisions will continue to be held by videoconference without requiring the agreement of the parties. The EPO further announced on 20 May 2021 that, in light of the ongoing coronavirus pandemic, the EPO has decided to further extend the pilot project for conducting opposition hearings by VICO until 31 January 2022. Where there are serious reasons preventing the use of VICO for oral proceedings in opposition, oral proceedings will be postponed until after that date. In addition, from this autumn the EPO has announced it intends to hold oral proceedings in examination by Zoom, rather than by Skype for Business.