COVID and ViCo: The End?

Enlarged Board of Appeal decision G1/21

Background

Following an EPO press release on 16 July 2021, the Enlarged Board of Appeal’s (EBA) decision on videoconferencing (ViCo) was released last week. We have written two previous articles on this subject, here and here. By way of background, it was announced in December 2020 that from 1 January 2021, appeal hearings could be held by ViCo even without the agreement of the parties concerned. This has been incorporated into new Article 15a RPBA, but was subject to a legal challenge and referred to the EBA. The referral question was as follows:

“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?”

Scope of referral

The EBA limited the scope of the referral question in two important ways. Firstly, it decided to only deal with the context of the referral in question, namely the COVID-19 pandemic, where it was not possible to hold oral proceedings in person. This removed the EBA’s remit to discuss the eventual post-COVID legality of ViCo, which is perhaps the more interesting question. Secondly, the EBA limited the referral only to appeal proceedings, as this was the reality of the case before it. Therefore, the reformulated question was as follows:

“During a general emergency impairing the parties' possibilities to attend in-person oral proceedings at the EPO premises, is the conduct of oral proceedings before the boards of appeal in the form of a videoconference compatible with the EPC if not all of the parties have given their consent to the conduct of oral proceedings in the form of a videoconference?”

Outcome

The EBA found that the purpose of oral proceedings is to give parties an opportunity to plead their case orally, so a new format allowing them to do so should not be excluded merely because it was not available at the time of drafting the legislation.

The EBA did acknowledge that although ViCo proceedings are ‘suboptimal’, they are not so bad as to violate the right to be heard, noting that body language and facial expressions are still visible despite the technological limitations. The EBA agreed that ViCo was not the same as being in person, and thus in-person proceedings remain the gold standard and should be the default for proceedings in a post-pandemic world. Therefore, in-person proceedings should not be denied without good reason, such as the ability to attend at the EPO itself, but not administrative issues such as the availability of conference rooms or intended efficiency gains. It is for the Board of Appeal to determine whether such good reasons are present.

Overall, the EBA found that introduction of mandatory ViCo oral proceedings was justified in the context of COVID-19. The wording of the decision seems to imply that post-pandemic, a move to make ViCo the norm would not be legally justified. Of course, parties could request ViCo, but if not, Appeal Boards are unlikely to be able to force this format.

The order issued by the EBA was 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.”

Examination and opposition proceedings

As mentioned above, the EBA limited to the scope of the referral to appeals only, and therefore did not discuss examination or opposition proceedings. The latest information from the EPO regarding the potential effect of G1/21 on opposition and examination proceedings, available here, is that current Decisions of the President on this point apply until the decision in G1/21 is announced. Given that this has now happened, we may expect an update regarding opposition and examination proceedings shortly from the EPO.

In the meantime, the situation for opposition and examination proceedings remains that proceedings are held by ViCo, unless there are serious reasons not to do so, in which case they are postponed until 31 January 2022. For opposition proceedings, this is governed by the Decision of the President of the EPO dated 10 November 2020 (available here) in combination with the Decision dated 14 May 2021 (available here). For examination proceedings, this is governed by the Decision dated 17 December 2020 (available here).

The full decision can be found here.