New Referral to EPO Enlarged Board of Appeal on Non-consensual Oral Proceedings Held by Video Conference

It has been reported that an EPO technical Board of Appeal has referred a question to the Enlarged Board of Appeal concerning the legality of holding oral proceedings by video conference before the Boards of Appeal without the consent of the parties. It appears that the referral was made by technical Board of Appeal 3.5.02 in appeal case T1807/15 during oral proceedings held on 8 February 2021.

This referral follows the announcement at the end of 2020 that a Board of Appeal may decide to conduct oral proceedings by video conference without the consent of the parties.

A significant backlog of oral proceedings has been developing after the extensive postponement of in-person oral proceedings last year owing to the pandemic and travel restrictions. No examining division or opposition division oral proceedings have been carried out in-person at the EPO since March 2020. Examining division oral proceedings were quickly converted to video conference as standard and, following more recent changes, the default position for opposition division oral proceedings is also to use video conference, until at least 15 September 2021 (see our report here).

The Boards of Appeal have so far left open the option of in-person oral proceedings and had previously made the use of the video conference an option if all parties agreed. Following a consultation on amendments to the Rules of Procedure of the Boards of Appeal (RPBA), new Article 15a RPBA has been adopted. Article 15a(1) RPBA, in particular, allows a Board to hold oral proceedings by video conference of its own motion, i.e. without consent of the parties, if the Board considers it "appropriate to do so".

New Article 15a RPBA applies to all oral proceedings scheduled to take place on or after 1 April 2021. However, according to the announcement here, the Boards have been able to convert in-person oral proceedings to video conference without the consent of the parties from 1 January 2021, i.e. before new Article 15a RPBA comes into force in April.

It appears that the referral on 8 February 2021 to the Enlarged Board of Appeal follows a request by a party made at the start of oral proceedings. The oral proceedings were converted to video conference without the consent of the parties being sought. The precise wording of the question referred is not yet available, and the case itself is now on hold pending the decision of the Enlarged Board.

The referral will likely act to further delay all Board of Appeal oral proceedings where at least one party has not consented to video conference oral proceedings. It appears that fully consensual video conference oral proceedings may be allowed to go ahead. Thus, we expect that numerous Board of Appeal oral proceedings will be postponed whilst a decision is reached by the Enlarged Board of Appeal or until the referral is rejected.

While we anticipate that the EPO will want the issue to be resolved quickly in order to prevent the backlog of oral proceedings from growing further, there is likely to be a significant delay before legal certainty is achieved. A similar referral concerning the legality of holding oral proceedings in Haar was referred by Board 3.5.03 following a request made in January 2019. Upon receiving that request and deciding to refer questions to the Enlarged Board, the Board took a month to publish the questions referred and the Enlarged Board decision issued in September 2019, following oral proceedings in July 2019. That decision was very prompt by Enlarged Board of Appeal standards, and if the same pace is applied to the present referral, we might expect to receive some clarity in the present case by October 2021.

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