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The EPO’s Enlarged Board of Appeal (EBA) is currently considering in case G1/21 the legality of holding oral proceedings by video conference without the consent of the parties (see our reports here and here). Oral proceedings took place before the EBA on 28 May 2021 by video conference. However, the substantive issues were not considered during the hearing and the oral proceedings were instead postponed until 2 July 2021.
The appellant (opponent) had previously objected to the composition of the EBA on the grounds of suspected partiality and, as reported here, the Chairman and a legally qualified member were replaced. On 24 May 2021, the appellant raised further objections on the grounds of suspected partiality against members of the EBA and made several procedural requests. Of the procedural requests, the EBA accepted the request to discuss the objections relating to suspected partiality at a hearing and, in order to deal with the objections in a timely manner, decided to dedicate the first part of the 28 May 2021 oral proceedings to a non-public discussion of the objections.
Following the non-public discussion, the EBA rejected the objections of suspected partiality and the various other procedural requests. However, a further procedural objection raised by the appellant during the non-public discussion was then re-iterated publicly. In particular, the appellant objected that they had only been given formal notification of submissions made by the President of the EPO on 26 May 2021, i.e. two days ahead of the hearing, and therefore had not been given sufficient time to consider the submissions. In view of the short time frame, the appellant wanted the hearing to be postponed. It was highlighted by a member of the EBA that the President’s comments were published online on 28 April 2021. However, the appellant argued that the submissions should have been timely forwarded and it is not incumbent on the appellant to check the EPO’s website for submissions.
The EBA ultimately accepted the request to postpone the hearing and has now issued a new summons to oral proceedings for 2 July 2021, thereby providing the appellant with just over a month to consider the President’s comments.
The EBA has understandably been attempting to streamline the current referral, since any delay to a final decision on the legality of VC oral proceedings without consent could potentially affect a large number of cases. It is therefore rather unfortunate that a procedural oversight by the EPO has resulted in a delay of over one month.