Friday, 16 July 2021

G 1/21 - oral proceedings by videoconference also if a party objects: limited to OP before the Board during the pandemic or similar circumstances

Today, a Press Communiqué was issued by Spokespersons of the Boards of Appeal of the European Patent Office on the decision of the Enlarged Board in G 1/21. The press release is cited below in full (emphasis added). The Enlarged Board of Appeal "limited the scope of its answer  by confining its order to oral proceedings that are held during a period of general emergency impairing the parties' possibilities to attend in-person oral proceedings at the EPO premises and moreover are conducted specifically before the Boards of AppealAccordingly, in its order the Enlarged Board did not address the question whether oral proceedings by videoconference may be held without the consent of the parties in the absence of a period of general emergency. Nor did the order address the question whether oral proceedings by videoconference may be held without the consent of the parties in examination or opposition proceedings before the EPO's departments of first instance." Many interested persons will feel disappointed by the limitation of the scope, as the question remains undecided for oral proceedings in first instance proceedings.

Press Communiqué of 16 July 2021 on referral G 1/21 to the Enlarged Board of Appeal

16 July 2021

Today, the Enlarged Board of Appeal of the European Patent Office issued the order of its decision in case G 1/21, 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 travel restrictions, the technical prerequisites for conducting oral proceedings by videoconference before the Boards of Appeal were created in 2020. From January 2021, oral proceedings by videoconference before the Boards of Appeal were in some cases conducted without the consent of the parties. Oral proceedings by videoconference were also held without the consent of the parties in examination and opposition proceedings before the EPO's departments of first instance.

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.

On 23 March 2021, the Administrative Council of the European Patent Organisation approved new Article 15a RPBA 2020, which entered into force on 1 April 2021. Article 15a RPBA 2020 reads:

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 of a party or of its own motion.
(2) Where oral proceedings are scheduled to be held on the premises of the European Patent Office, a party, representative or accompanying person may, upon request, be allowed to attend by videoconference.
(3) The Chair in the particular appeal and, with the agreement of that Chair, any other member of the Board in the particular appeal may participate in the oral proceedings by videoconference.

The case reference of the referral before the Enlarged Board of Appeal is G 1/21. During the proceedings before the Enlarged Board of Appeal, partiality objections under Article 24 EPC were raised against several of its members. By interlocutory decision of 17 May 2021, the Enlarged Board of Appeal - composed in accordance with Article 24(4) EPC, i.e. without the participation of the members objected to - decided to replace the Chairman and one legally qualified member, because of their previous involvement in the preparation of Article 15a RPBA 2020, which was at least indirectly under review in the pending referral. The partiality objections against two other members were rejected. Further objections, filed on 24 May 2021, were rejected as inadmissible by interlocutory decision of 28 May 2021.

On 28 May and 2 July 2021, oral proceedings took place before the newly composed Enlarged Board of Appeal.

On 16 July 2021, the Enlarged Board of Appeal issued the order of its decision in case G 1/21.

Key Considerations

In G 1/21 the Enlarged Board of Appeal limited the scope of its answer to the more broadly formulated question referred by Technical Board 3.5.02, by confining its order to oral proceedings that are held during a period of general emergency impairing the parties' possibilities to attend in-person oral proceedings at the EPO premises and moreover are conducted specifically before the Boards of Appeal.

Accordingly, in its order the Enlarged Board did not address the question whether oral proceedings by videoconference may be held without the consent of the parties in the absence of a period of general emergency. Nor did the order address the question whether oral proceedings by videoconference may be held without the consent of the parties in examination or opposition proceedings before the EPO's departments of first instance.

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.

The reasons for the decision will be issued in writing in due course and will subsequently be publicly available in the decisions database of the Boards of Appeal.

Contact

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

This press release is a non-binding document for media use


The original BOA press communique can be found here.

Another press release from the EPO can be found here, and is cited integrally below (emphasis added):

EBoA endorses conduct of oral proceedings by videoconference during pandemic

16 July 2021

Today, the Enlarged Board of Appeal, the highest level of independent judicial authority at the European Patent Office (EPO), has decided on referral G 1/21 concerning the compliance of oral proceedings by videoconference (VICO) with the European Patent Convention (EPC). The decision was taken after a public hearing held before the Enlarged Board on 2 July 2021.

According to the order of the decision, 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 VICO is compatible with the EPC even if not all of the parties to the proceedings have given their consent to this form.

Oppostion by videoconferenceIn its order the Enlarged Board did not address the question whether oral proceedings by videoconference may be held without the consent of the parties in the absence of a period of general emergency. Nor did the order address the question whether oral proceedings by videoconference may be held without the consent of the parties in examination or opposition proceedings before the EPO’s departments of first instance. The Enlarged Board’s order therefore does not apply directly to oral proceedings by VICO before examining and opposition divisions, nor, by analogy, to the Legal Division or the Receiving Section. It does not apply, either, to any situation where there is no general emergency. In view of this, and given that the pandemic situation in the EPO Contracting States and worldwide still persists, the Office will continue with the conduct of oral proceedings by VICO in accordance with its present practice.

The Enlarged Board has announced that the reasoned decision will be issued as soon as possible. Once available, the Office will carefully analyse the reasoning to assess any potential indirect implications on oral proceedings held by VICO before the EPO’s departments of first instance.

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