Monday, 16 November 2020

User consultation on insertion of new Article 15a (oral proceedings by videoconference) in the Rules of Procedure of the Boards of Appeal (RPBA 2020)

The EPO's Boards of Appeal Committee (BOAC) and the President of the Boards of Appeal of the EPO have invited users to take part in the consultation on proposed new Article 15a RPBA. The proposed article is available in the English version. The consultation can be found here.

This online consultation will remain open until 12.00 hrs CET on 27 November 2020.

The proposed text reads:

Article 15a Oral proceedings by videoconference

(1) The Board may decide to hold oral proceedings pursuant to Article 116 EPC by videoconference if the Board considers it appropriate to do so, either upon request by a party or of its own motion.

(2) Where oral proceedings are scheduled to be held in person, the Chair may allow a party, representative or accompanying person to attend by videoconference. In exceptional circumstances, the Chair may decide that a party, representative or accompanying person shall attend by videoconference.

(3) The Chair may allow any member of the Board in the particular appeal to participate by videoconference. 

Par. (1) thus provides that oral proceedings may be held by videoconference.

Par. (2) implicitly provides that oral proceedings may be held in person; par (2) explicitly provides for hybrid oral proceedings where  a party, representative or accompanying person may (voluntarily) or shall (mandatorily) attend in oral proceedings held in person.

Par. (3) provides that any member of the Board, also the Chair, may participate by videoconference; implicitly, it provides that any Board member may participate by videoconference in oral proceedings by video conference as well as in hybrid oral proceeding as well as in oral proceedings where all parties, representatives and accompanying persons and (presumably) some -but not all- Board members attend in person.

The text of the proposed new provision and some explanatory remarks are set out in the document that is available from the Download menu in the original message. 

The text of the invitation on the webpage is duplicated below in its entirety (emphasis added).


User consultation on an amendment to the Rules of Procedure of the Boards of Appeal (RPBA 2020)

Insertion of new Article 15a (oral proceedings by videoconference)

The Rules of Procedure of the Boards of Appeal were last revised in 2019 and the revised version (RPBA 2020) came into force on 1 January 2020. It is now proposed that the RPBA 2020 are amended by the insertion of new Article 15a clarifying that the Boards of Appeal may hold oral proceedings pursuant to Article 116 EPC by videoconference.

The Boards of Appeal Committee (BOAC) and the President of the Boards of Appeal invite users to take part in the consultation on proposed new Article 15a RPBA, which is available in the English version.

Please send your comments to RPBAonlineconsultation@epo.org

This online consultation will remain open until 12.00 hrs CET on 27 November 2020.

Thank you very much for your participation.

Derk-Jan De Groot and Carl Josefsson
Chairman of BOAC and President of the Boards of Appeal

The text of the download document "Text of the new provision and some explanatory remarks" is cited below in full (emphasis added):

User consultation on an amendment to the Rules of Procedure of the Boards of Appeal (RPBA 2020) – insertion of new Article 15a (oral proceedings by videoconference)

The Rules of Procedure of the Boards of Appeal were last revised in 2019 and the revised version (RPBA 2020) came into force on 1 January 2020. It is now proposed that the RPBA 2020 are amended by the insertion of new Article 15a clarifying that the Boards of Appeal may hold oral proceedings pursuant to Article 116 EPC by videoconference.

The Boards of Appeal Committee (BOAC) and the President of the Boards of Appeal invite users to take part in the consultation on proposed new Article 15a RPBA, which is available in the English version.

The text of the proposed new provision and some explanatory remarks are set out in this document.

Please send your comments to RPBAonlineconsultation@epo.org 

This online consultation will remain open until 12.00 hrs CET on 27 November 2020.

Thank you very much for your participation.

Derk-Jan De Groot         Carl Josefsson

Chairman of BOAC        President of the Boards of Appeal 


Proposed text

Article 15a

Oral proceedings by videoconference

(1) The Board may decide to hold oral proceedings pursuant to Article 116 EPC by videoconference if the Board considers it appropriate to do so, either upon request by a party or of its own motion.

(2) Where oral proceedings are scheduled to be held in person, the Chair may allow a party, representative or accompanying person to attend by videoconference. In exceptional circumstances, the Chair may decide that a party, representative or accompanying person shall attend by videoconference.

(3) The Chair may allow any member of the Board in the particular appeal to participate by videoconference. 


Explanatory remarks

1. The Rules of Procedure of the Boards of Appeal were last revised in 2019 and the revised version (RPBA 2020) came into force on 1 January 2020 (see CA/D 5/19 Corr. 1, CA/3/19). The present amendment involves adding one new Article to the RPBA 2020. Proposed new Article 15a RPBA clarifies that the Boards of Appeal may hold oral proceedings pursuant to Article 116 EPC by videoconference.

2. In the course of 2020, Boards of Appeal have conducted oral proceedings in two different formats, namely with the parties attending either in person or by videoconference. From May to October 2020, oral proceedings were held by videoconference in over 120 appeal cases. Initially, they were held by videoconference only if all parties to the proceedings agreed. This enabled the parties and the members of the Board to become accustomed to oral proceedings being conducted in the new format. It is envisaged that in the near future the Boards of Appeal will extend their practice by holding oral proceedings by videoconference without requiring the parties' agreement to this format.

3. Some Boards of Appeal have furthermore conducted oral proceedings without all board members being present in the oral proceedings room, as board members have been able to participate by connecting remotely from another location, in particular from home.

4. Within the legal framework of the EPC (Article 116 EPC), proposed new Article 15a RPBA codifies this practice, sets out the procedure and further makes clear that a Board may decide to hold oral proceedings by videoconference if it considers it appropriate, either upon request by a party or of the Board's own motion.

5. Article 116 EPC regulates oral proceedings before the European Patent Office. Neither this Article nor any other Article of the EPC or the RPBA 2020 stipulates that parties to the proceedings, their representatives, or members of the Board must be physically present in the oral proceedings room. Therefore, neither the EPC nor the RPBA 2020 exclude oral proceedings by videoconference. At the same time, it is self-evident that in all oral proceedings before the Boards of Appeal the rights and safeguards under the EPC and the RPBA 2020 must be respected.

6. The Board holds oral proceedings if it considers these to be expedient or if they are requested by any party to the proceedings (Article 116(1) EPC).

7. Where oral proceedings are to take place in a given case, then according to proposed new Article 15a(1) RPBA the Board in the particular appeal determines whether it is appropriate (in German: "zweckmäßig"; in French: "approprié") to hold them by videoconference. If the Board decides to hold oral proceedings by videoconference, they are conducted using technical means for the electronic transmission of audio and video signals in real timeOral proceedings in this format constitute oral proceedings pursuant to Article 116 EPC.

8. The Board in a particular appeal can decide to hold oral proceedings by videoconference if a party so requests, or it can decide to do so of its own motion. In either case the decision is a discretionary one, in which the Board will be guided by the principles of fair proceedings, in particular the fair conduct of oral proceedings (Article 15(4) RPBA 2020), the parties' right to be heard (Article 113(1) EPC) and the public's right of access to oral proceedings (Article 116(4) EPC). When considering whether it is appropriate to hold oral proceedings by videoconference, the Board will take into account all relevant aspects, such as the suitability of the case to be heard in this way – notably in terms of its complexity and any need for interpretation, the parties' willingness or not to attend remotely and their arguments for or against remote attendance, any foreseeable travel restrictions, and the personal circumstances of the persons due to be involved in the oral proceedings.

9. Proposed new Article 15a(2) RPBA concerns oral proceedings scheduled to be held in person and allows for the use of videoconferencing means during those proceedings. The extent to which videoconferencing means are used in a given case is determined by the Chair in the particular appeal as part of their responsibility for the procedural management of the case (see for example Articles 4(2) and 6(4) RPBA 2020) and especially their duty to ensure the fair, orderly and efficient conduct of the oral proceedings (see Article 15(4) RPBA 2020). Accordingly, under proposed new Article 15a(2), first sentence, RPBA, the Chair may allow a party, representative or accompanying person to attend only remotely, rather than in person. 

10. Under proposed new Article 15a(2), second sentence, RPBA, the Chair may decide that, in exceptional circumstances, a party, representative or accompanying person must attend by videoconferencing means. This is a discretionary decision of the Chair, which should take account of the principles of fair proceedings, in particular the equal treatment of the partiesThus, if a situation arises in which a person due to attend is prevented from being physically present at the oral proceedings and a party objects to one or more attending persons being physically present while at the same time one or more others are remotely connected, the Chair should normally envisage ordering all persons to attend remotely. Nevertheless, there may be exceptional circumstances in which it will be more appropriate for the Chair to order only the person prevented from being physically present to attend remotely. For example, in the event that one of several parties, e.g. one of several opponents, or one of several representatives of a party is prevented from attending in person, the Chair may decide to order that party or representative to attend remotely if the conclusion of the appeal proceedings would otherwise be unduly delayed. Similarly, where an accompanying person, e.g. the inventor, is prevented from attending in person while the parties and their representatives are all able and willing to attend in person, the Chair may order that person to attend remotely.

11. In any case, the internal working processes of the Board involve the Chair consulting the other Board members.

12. Under proposed new Article 15a(3) RPBA, the Chair in a particular appeal can also allow, but may not order, any member of the Board in the particular appeal to participate remotely. Under this provision, the Chair too may participate remotely.

13. The taking of evidence, in particular the hearing of witnesses, is not addressed by proposed new Article 15a RPBA. It is expected that this will be regulated by way of amendment of Rules 117 and 118 EPC.

14. The requirement under Article 116(4) EPC that oral proceedings are public must also be met when they are held by videoconference. It is for the Board in a particular appeal to ensure that access is provided to members of the public. In the case of oral proceedings by videoconference, it may be provided, for example, by also permitting interested members of the public to attend remotely or by streaming the oral proceedings to a dedicated room on the EPO premises.

15. For the summons to oral proceedings by videoconference, Rule 115(1) EPC and Article 15(1) RPBA 2020 apply. Hence, at least two months' notice of the summons must be given and the Board endeavours to give at least four months' notice. These periods do not apply, however, in the event of a change of the format of oral proceedings, e.g. from in-person oral proceedings to oral proceedings by videoconference (see proposed new Article 15a(1) RPBA), or where the use of videoconferencing means for one or more attending persons to connect to in-person oral proceedings is allowed or, exceptionally, ordered by the Chair (see proposed new Article 15a(2) RPBA). The parties will be informed of any such change by way of communication in good time before the date of the oral proceedings. In such cases, if a party does not attend the oral proceedings by videoconference, Rule 115(2) EPC and Article 15(3) RPBA 2020 apply.

16. It is suggested that proposed new Article 15a RPBA enters into force on 1 April 2021, subject to its approval by the Administrative Council under Article 23(4), second sentence, EPC. As outlined above, proposed new Article 15a RPBA clarifies the practice of the Boards of Appeal since May 2020 of conducting oral proceedings by videoconference. Therefore, the Boards of Appeal may adapt their practice before the date of entry into force.


5 comments :

  1. Attentive Observer17 November 2020 at 09:47

    That in the present situation it might become necessary to hold oral proceedings in form of video-conferences, this should not become the rule for all times, especially not if it is left to the discretionary power of the boards. Once the pandemic is over, oral proceedings should revert to their traditional form.

    If after the pandemic, parties agree to hold oral proceedings in form of videoconferences, then it would be OK, but consent has to be given.

    It is in any case necessary to consult the “Travaux préparatoires” having led to Art 116 as it stands. That videoconferences could not be envisaged in 1973 is not at stake.

    Merely stating that neither Article 116 nor any other Article of the EPC or the RPBA 2020 stipulates that parties to the proceedings, their representatives, or members of the Board must be physically present in the oral proceedings room, is simply ignoring the philosophy behind Art 116.

    The discretionary power of the first instance bodies is submitted to the review of the boards of appeal, but there is no instance reviewing the discretion left to the boards of appeal. The possibility of filing a petition for review is not an adequate means of redress for discretionary decisions of the boards in view of the case law of the EBA under Art 112a.

    There is another point which is also crucial: what is the legal basis for the boards deciding that when the oral proceedings is to be held in person, only two representatives by party are allowed. The fact that a board might allow party, representative or accompanying person to attend by videoconference. But this is no replacement for the actual presence of a party, and again, it is left to the discretionary power of the Boards.

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  2. OP per videoconference clearly favours opponents. Any amendments during such OP are communicated to opponents per email and until they can confirm the receipt of such an email, the procedure is stalled.... This opens the door for an abuse.

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  3. Will this be a permanent provision? Or will it be cancelled again after Covid-19 has disappeared?

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  4. "Therefore, neither the EPC nor the RPBA 2020 exclude oral proceedings by videoconference."

    Neither does the EPC exclude oral proceedings by telephone conference (not preferred), nor in a room with transparent room dividers in between the various people (preferred over vico)...

    But did we not all understand "oral proceedings" to refer to in-person proceedings with all persons present? Vienna Convention interpretation?

    ReplyDelete
    Replies
    1. Interesting comment.

      Do you refer to Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (1986)? More specifically, Article 31 "General rule of interpretation":
      1.A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

      Delete

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