September 27, 2021
In response to the COVID-19 pandemic and the associated travel restrictions, the technical prerequisites for conducting oral proceedings by videoconference before the Boards of Appeal were created in 2020. From January 2021, oral proceedings by videoconference before the Boards of Appeal were in some cases conducted without the consent of the parties. Oral proceedings by videoconference were also held without the consent of the parties in examination and opposition proceedings before the EPO’s departments of first instance.
In its interlocutory decision of 12 March 2021 in case T 1807/15, the Technical Board 3.5.02 referred the following question to the Enlarged Board of Appeal under Article 112(1)(a) EPC:
“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?”
Following a hearing on 2 July 2021, the EBA has reached a decision in case G 1/21, “Oral proceedings by videoconference”, finding that the conduct of oral proceedings by videoconference during a “general emergency” is compatible with the right to oral proceedings as enshrined in Article 116(1) of the EPC even if not all the parties to the proceedings have given their consent.
The EBA did not address the question of whether oral proceedings by videoconference can be held without the parties’ consent outside of a period of “general emergency”. Further, the decision only relates to proceedings before the EPO Boards of Appeal and does not apply to examination or opposition proceedings or to the Legal Division or the Receiving Section of the EPO. However, given that the pandemic is ongoing, the EPO is continuing to conduct oral proceedings by videoconference in accordance with its current practice. To read the EPO’s press release in full and for a link to the full decision, click here.