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The Referral to the Enlarged Board of Appeal on Legality of Video Conference Hearings is Going Ahead

16 March 2021

Board of Appeal 3.5.02 in appeal case T1807/15 has issued a decision referring a question to the Enlarged Board of Appeal on the legality of holding oral proceedings by video conference without the consent of the parties. As reported earlier here, doubt had been cast on whether the referral would in fact proceed, since the party who initially made the request for a referral subsequently withdrew the request. Now it has been confirmed that the referral will go ahead, and the Board of Appeal has referred 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 Board considered that the withdrawal of the request for a referral by the party that had initially made that referral did not prevent the referral from proceeding. According to Article 112(1) EPC, “[i]n order to ensure uniform application of the law, or if a point of law of fundamental importance arises: (a) 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…”. Here, the Board concluded at Reason 2.1 of the decision that the above question is one of “fundamental importance”, because an “indefinite” number of cases could in principle be subject to oral proceedings by videoconference without the consent of the parties.

As set out at Reasons 3.3 to 3.5 of the decision, the Board saw “no need to seek clarification of whether the use of videoconferences in general is compatible with Article 116 EPC.” The Board considered Article 116(1) EPC to provide a right to oral proceedings which can be exercised or waived. For example, a party can request oral proceedings but then choose not to attend by withdrawing the request for oral proceedings. Since a party may waive its right to oral proceedings, the Board concluded that the use of videoconferences for oral proceedings is compatible with Article 116 EPC if all the parties consent. Therefore, the Board considered it appropriate to restrict the question being referred to the situation where consent for videoconferencing has not been given by all parties.

In relation to examination and opposition division oral proceedings, the Board considered at Reason 3.6 that “[t]he issue of whether holding a videoconference without the parties' consent is consistent with Article 116 EPC is generally applicable to first-instance proceedings too.” Thus, the question being referred is not only relevant to Board of Appeal oral proceedings, but applies equally to oral proceedings before the examination and opposition divisions.

As part of the decision, the Board of Appeal sought to construe the term “oral proceedings”, and commented at Reason 5.1.2: “just because the EPC has not explicitly defined the format of oral proceedings does not necessarily mean that the term "oral proceedings" in Article 116 EPC should be construed so broadly as to encompass videoconferences”. The Board then considered possible literal, teleological and dynamic interpretations of the term “oral proceedings”. Having taken into account various provisions, including the relevant Articles and Rules as well as Notices issued by the EPO, the Board stated that it favoured Article 116 EPC being construed to provide a right for “the parties to be heard at in-person oral proceedings”.

If that construction were to be followed by the Enlarged Board of Appeal, then it would seem that videoconference oral proceedings would only be possible with the consent of all parties. Of course, the Enlarged Board of Appeal may well not agree with the views of Board of Appeal 3.5.02. It is likely that the EPO itself will make submissions defending oral proceedings by video conference without the consent of the parties.

Finally, as reported here, the Institute of Professional Representatives before the EPO (epi) filed third party observations in the present appeal case, requesting that the referral to the Enlarged Board of Appeal is expedited and also proposing wording for the questions to be referred. The Board took the view that “[t]his letter cannot however be considered to represent third party observations within the meaning of Article 115 EPC, since it did not relate to patentability.” Thus, the Board did not take the letter into account. Of course, it is highly likely that amicus curiae submissions will be made to the Enlarged Board of Appeal by various interested parties, such as epi and the EPO itself.

Given that the prospect of in person oral proceeding resuming on a regular basis does not appear imminent and that numerous oral proceedings are occurring each week by videoconference without the consent of all parties, it is expected that the Enlarged Board of Appeal will aim to issue a decision fairly quickly. There is no indication as yet that the EPO plans to postpone any existing videoconference oral proceedings or cease from arranging new videoconference oral proceedings. 

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