How Will Board of Appeal React to Withdrawal of Request for Referral to Enlarged Board of Appeal?

As reported earlier here, Board of Appeal 3.5.02 in appeal case T1807/15 indicated in the minutes of oral proceedings that it would refer a question to the Enlarged Board of Appeal concerning the legality of holding oral proceedings by video conference without the consent of the parties. The planned referral to the Enlarged Board of Appeal followed a request by a party to the proceedings, which was made at the start of oral proceedings on 8 February 2021. However, doubt has been cast on whether the referral will in fact proceed, since the party in question has now withdrawn the request for a referral.

The Board of Appeal has not yet issued its decision following the oral proceedings, and as a result the referral to the Enlarged Board of Appeal has not yet been formally made.Article 112(2) EPC states that "…the Board of Appeal shall, during proceedings on a case and either of its own motion or following a request from a party to the appeal, refer any question to the Enlarged Board of Appeal if it considers that a decision is required…". The Board of Appeal therefore retains the power to refer the question to the Enlarged Board of Appeal of its own motion, despite the request being withdrawn by the party.

Before the request was withdrawn, third party observations had been filed by the Institute of Professional Representatives before the EPO (epi). The third party observations included a request to expedite the referral to the Enlarged Board of Appeal and contained proposed wording for the questions to be referred. It is therefore evident that there is wider interest in the Enlarged Board of Appeal considering whether oral proceedings by video conference can be held without the consent of the parties. It is possible that the Board of Appeal may take the broader issue of public interest into account when deciding whether or not to make the referral of its own motion.

It will be interesting to see how the Board of Appeal reacts to this unexpected and rather unusual development.

For more information on video conference oral proceedings at the EPO, see our briefing here.