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We recently reported that the EPO’s Enlarged Board of Appeal has scheduled a hearing date of 28 May 2021 for the referral regarding the legality of video conference oral proceedings without the consent of one or more of the parties.
The EPO has today announced (see here and here) that it will continue to hold oral proceedings by video conference as under current practice, i.e. “without requiring explicit agreement of the parties”. This outcome is perhaps not altogether surprising under the circumstances: the EPO has explained that “avoiding a further delay in access to justice is a priority”. By contrast, had the EPO suspended all hearings scheduled to take place by video conference “without consent”, the already lengthy backlog caused by the pandemic would be extended yet further.
Separately, the Administrative Council of the EPO has approved an amendment to the Rules of Procedure of the Boards of Appeal. In particular new Article 15a allows the Boards of Appeal to hold oral proceedings by video conference “either upon request by a party or of its own motion”, and will come into force on 1 April 2021. This amendment puts into effect the existing practice of the Boards of Appeal, whereby hearings are being held by video conference at the Boards “own motion” (i.e. without the consent of the parties).
In view of these developments, it seems that the EPO, at least, is relatively confident that the Enlarged Board of Appeal will not conclude that video conference oral proceedings must have the consent of all parties to be legal.