In-Person Oral Proceedings Are The Gold-Standard But Is Silver Good Enough?

• Published date: 25 February 2022
• Subject Matter: Intellectual Property, Patent
• Law Firm: Boult Wade Tennant
• Author: Malcolm Elkin and Simon Binnie

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...