The Enlarged Board of Appeal of the European Patent Office (EPO) has been grappling with the question of when videoconference oral proceedings can be used before the Boards of Appeal.
New Article 15a of the Rules of Procedure of the Boards of Appeal (RPBA) of the EPO, which came in to force earlier this year, was supposed to clarify the position, giving individual Boards the decision on whether to hold oral proceedings by videoconference, even without the consent of the parties. Just prior to this the Technical Board of Appeal in case T 1807/15 referred a question to the Enlarged Board. The referral, G1/21, focussed on this issue of consent from the parties, or rather the absence of it, when Boards of Appeal instigate videoconference oral proceedings.
Unusually, the order of the decision for G1/21 was released in July without full reasons. The order of the decision read:
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 lack of the full reasoning left ambiguity especially around what exactly constitutes impairment. We consider below to what extent the situation is any clearer in view of the full reasoning behind the decision which has just been released.
Suitable but not Equivalent
The Enlarged Board in their reasoning acknowledges that parties have a fundamental right to be heard. They even go further and set out that not only do in-person oral proceedings provide that right they should be the default option, with parties being denied this option by Boards of Appeal only if there are good reasons.
In coming to the decision the Enlarged Board considered the question of whether videoconference oral proceedings are equivalent to in-person oral proceedings. It seems the significant number of amicus curiae briefs asserting that they are not equivalent pushed the Enlarged Board to come to the view that in-person oral proceedings are the “Gold Standard”.
The Enlarged Board sets out that if a party is to be denied in-person oral proceedings there must be a “suitable, even if not equivalent”, alternative. It seems that the Enlarged Board feels that while videoconference oral proceedings are not equivalent to in-person oral proceedings they still have their place, especially in times of a pandemic. The Enlarged Board also indicates that if there are circumstances for a case that mean it is not suitable for videoconference oral proceedings then they will need to be held in person. Sadly, no elaboration is given as to what the qualifying circumstances would be.
In the case of the pandemic, the Enlarged Board gives us a little more than the impairment of the order, setting out that circumstances for justifying the use of videoconference oral proceedings could be “general travel restrictions or disruptions of travel possibilities, quarantine obligations, access restrictions at the EPO premises, and other health-related measures aimed at preventing the spread of the disease.” However, this still seems to give Boards of Appeal a wide margin of discretion.
The Enlarged Board does indicate that the decision on the use of videoconference oral proceedings should not be based on administrative matters such as availability of conference rooms or interpretation facilities, or the desire for efficiency gains.
For the time being while some restrictions due to the pandemic continue, it seems that Boards of Appeal have wide discretion to instigate oral proceedings by videoconference without the consent of the parties. Going forward, when restrictions ease, the mood music from the text of the decision would indicate a return back to in-person oral proceedings before the Boards of Appeal could be expected unless parties request otherwise – perhaps representing a rolling back from the more stark interpretations of Article 15a RPBA. It is worth noting that, as ever, procedure before the Boards of Appeal can diverge from that of first instance which are seemingly unaffected by the current decision.