Tuesday, May 09, 2023 T 2432/19 - Right to oral proceedings in form of a videoconference (no)

In the present opposition appeal case, the Board issued a summons to oral proceedings in Haar. The appellant (patent proprietor) requested that the oral proceedings be held by videoconference. No reasons were given for this request. The Board then issued a communication containing its provisional opinion. The parties were also informed that if the Board found it appropriate to do so, the oral proceedings might be held by videoconference. The parties were also asked to inform the Board if they wished to invoke any reasons against holding the oral proceedings by videoconference, for the case that the Board decided to use that format. The appellant repeated its request for oral proceedings by videoconference and stated that it knew of no reason why the oral proceedings could not be held by videoconference. The respondent invoked no reasons against holding oral proceedings by videoconference, but requested that the Board inform the parties as soon as possible if it decided to hold the oral proceedings by videoconference. Oral proceedings took place on the 25 April 2023 in person at the premises of the EPO in Haar. The Board argued that: 1. although the order of G 1/21 refers to an emergency situation, it follows from the ratio decidendi of this decision that in-person oral proceedings can only be denied under very limited conditions, even in a situation of general emergency such as a pandemic; 2. due to the fact that videoconferences, at least with current technology, can only provide a suboptimal form of communication, parties have a right to the optimum format for oral proceedings, i.e. in-person oral proceedings, that can only be denied under very limited conditions; and 3. e contrario it also follows from the reasons underlying the Enlarged Board's decision, that parties cannot force Boards to conduct videoconferences instead of in-person oral proceedings.

Wednesday, February 15, 2023 T 2303/19 - In person oral proceedings are for now (no Covid-19 related travel restrictions) the optimum format as expressed in decision G 1/21

In the present opposition appeal case, the parties were summoned to attend oral proceedings at the EPO premises. The appellant requested that the oral proceedings take place by videoconference. The respondent did not consent to this request and suggested a mixed mode format. The Board decided to hold the oral proceedings in person, as at the relevant time there were no Covid-19 related travel restrictions which would impair the parties' possibilities to attend in person oral proceedings at the EPO premises, and that in person oral proceedings are for now the optimum format as expressed in decision G 1/21 (see here).

Friday, October 29, 2021 G 1/21 - OP by Vico - the full decision is out!

On 16 July 2021, 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 full reasoning of the decision was not yet issued at that time, but only the Order and some comments. E.g, in the press communique, 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 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 full reasoning of the decision was expected to shed some light on the effect on the legality and conditions of oral proceedings by videoconference in first instance proceedings and in "normal times", when the pandemic is over.

The full decision was published today, 29 October 2021. 
In reason 32 of the decision, "Ihe Enlarged Board considers that the limitations currently inherent in the use of video technology can make it suboptimal as a format for oral proceedings, either objectively or in the perception of the participants, but normally not to such a degree that a party's right to be heard or right to fair proceedings is seriously impaired. If in an individual case these rights cannot be respected, it is of course the duty of the deciding body to take appropriate measures to remedy this."
In reason 45, the Enlarged Board indicates that "a hearing in person is the optimum format or, to use a term well known in the field of European patent law, it is the gold standard. It definitely fulfils the requirements of Article 113 EPC and Article 6 ECHR. It is also the format that the legislator had in mind when drafting Article 116 EPC. Therefore, in-person hearings should be the default option. Parties can only be denied this option for good reasons."
In reason 46, the Enlarged Board indicates that "[...] the holding of oral proceedings is seen as serving the interests of the parties. The vast majority of oral proceedings are held upon request by a party. It therefore makes sense that the choice of format for these oral proceedings can be made by the party who requested them and not by the board of appeal, especially as this concerns more than just an organisational matter. As stated earlier, the Enlarged Board holds that at this point in time videoconferences do not provide the same level of communication possibilities as in-person oral proceedings. A party may thus have good reasons to prefer in-person oral proceedings to a videoconference." (see reasons 47-50)

Friday, July 16, 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 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." Many interested persons will feel disappointed by the limitation of the scope, as the question remains undecided for oral proceedings in first instance proceedings.

Thursday, May 20, 2021 BREAKING NEWS: G 1/21 - Exclusion and objection of the chairman of the Enlarged Board, but not of other members

Interesting developments in G 1/21! On the same day as on which the President of the EPO further extended the pilot project for oral proceedings by videoconference before opposition divisions, as set out in the decision of the President of the European Patent Office dated 10 November 2020 concerning the modification and extension of the pilot project for oral proceedings by videoconference before opposition divisions (OJ EPO 2020, A121), to run until 31 January 2022 (see here), was a decision published online with respect to exclusion and objection of the chairman and other members of the Enlarged Board in case G 1/21 (decision dated 17 May 2021). Curious to what was decided and why: see below!
Update 28.05.2021: on 24.05.2021, the opponent's representative filed a response to the Communication with the decision, raising further reasoned objections and requests; the oral proceedings on 28.05.2021 started with a non-public discussion of those issues - see at the bottom of the page. The objections were rejected, but the oral proceedings to the merits of the case were further postponed, as the submissions from the President were only notified to the appellant two days before the oral proceedings.
Update 02.06.2021: oral proceedings are to be held on 2 July 2021 by videoconference.)