Is It Time To Clarify The Use Of ViCo Before The EPO Boards Of Appeal?

• Published date: 21 June 2023
• Subject Matter: Strategy, Coronavirus (COVID-19), Technology, Operational Impacts and Strategy
• Law Firm: Dehns
• Author: Daniel Sanz Sharley

Confusion over the application of G 1/21 outside of a general emergency - is a new referral needed?

The use of videoconference (ViCo) in oral proceedings held before the Examining, Opposition and Legal Divisions, and the Receiving Section, is clear - ViCo is the default format. However, the same level of clarity has not been afforded to oral proceedings before the Boards of Appeal.

In January 2021, the Enlarged Board of Appeal issued the decision of G 1/21 which authorised the mandatory use of ViCo in an emergency. However, following conflicting rulings by the Boards of Appeal since that landmark decision, there is confusion over the use of ViCo for oral proceedings before the Boards outside of a general emergency. This has led to the question: is a new referral needed to clarify the application of G 1/21 outside of a general emergency?

G 1/21 - July 2021

The case dealt with the following question:

"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?"

The decision confirmed that ViCo was compatible with the EPC and that it could be used in an emergency without the consent of the parties, i.e. parties would effectively be obliged to attend oral proceedings by ViCo, or not at all. However, the decision also highlighted that in-person proceedings represented the "Gold-Standard" and should be the default position in the absence of an emergency, and thus it was widely expected that oral proceedings before the Boards of Appeal would revert to an in-person format post-pandemic.

Statement by the President of the Boards of Appeal - January 2023

On 25 January 2023, the EPO decided that for the purposes of oral proceedings before the Boards of Appeal, the pandemic was officially over (and the World Health Organisation has since declared that Covid-19 is no longer a public health emergency of international concern). Since G 1/21 related to the legality of ViCo oral proceedings during an emergency, and the emergency was now deemed over, it was necessary to give some direction on the state of play moving forwards. However, rather than provide a clear ruling, the President's statement merely suggested that each Board has the discretion to decide on the format. Whilst oral proceedings via ViCo would still be available, it was ultimately...