G 1/21 – Enlarged Board of Appeal Creates More Questions Than Answers

G 1/21 – Enlarged Board of Appeal Order of 16 July 2021

The Enlarged Board of Appeal of the EPO has decided that, in certain circumstances, oral proceedings can be held by videoconference in cases where the parties to the proceedings do not consent to such a format. However, several questions remain regarding the types of cases where oral proceedings may be held by videoconference without the consent of the parties involved.

Background

In case T 1807/15, both the Appellant and the Respondent expressed a desire not to hold oral proceedings in the form of a videoconference. Despite this, the Board of Appeal arranged oral proceedings in this format and these were conducted by videoconference anyway.

During the oral proceedings, the Appellant asked the Board of Appeal to consider whether holding oral proceedings in the form of a videoconference without the consent of all parties to the proceedings denied the parties' their right to oral proceedings under Article 116(1) EPC. It is unclear whether this Article creates a right to in person oral proceedings, as Article 116(1) EPC only states that "oral proceedings shall take place… at the request of any party to the proceedings."

The Board of Appeal ultimately referred the following question to the Enlarged Board of Appeal for consideration:

"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?"

Decision of the Enlarged Board of Appeal

The Enlarged Board of Appeal has since considered the above question and, on 16 July 2021, issued the order of its decision in case G 1/21. In this order, the Enlarged Board stated the following:

"During a general emergency impairing the parties' possibilities to attend in-person oral proceedings at the EPO premises, the conduct of oral proceedings before the boards of appeal in the form of a videoconference is compatible with the EPC even 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."

It seems highly likely that the EPO will consider the ongoing COVID-19 pandemic to be a "general emergency". Therefore, it seems safe to assume oral proceedings before the Boards of Appeal will generally be held in the form of a videoconference for the duration of the COVID-19 pandemic.

However, it remains unclear whether the Enlarged Board of Appeal believes oral proceedings can be held in the form of a videoconference without the consent of all parties to the proceedings at times other than a "general emergency". No mention of such circumstances has been made in the order of 16 July 2021. Thus, the question of whether the EPO can force oral proceedings to take place via videoconference in more usual circumstances remains unanswered.

Additionally, the order issued by the Enlarged Board only refers to oral proceedings before the Boards of Appeal. No mention is made of oral proceedings before the Departments of First Instance, namely the Examining Division and the Opposition Division. Accordingly, it remains unclear whether the Examining Division and the Opposition Division have the authority to arrange for oral proceedings to be held in the form of a videoconference without the consent of all parties to the proceedings at any time. This includes times of "general emergency" such as during the COVID-19 pandemic.

Conclusions

It was widely hoped that the Enlarged Board would clarify in G 1/21 whether the EPO can insist oral proceedings take place via videoconference without the consent of all parties to the proceedings.

G 1/21 has confirmed the Boards of Appeal can stipulate such a format for the duration of the COVID-19 pandemic, which has provided some clarity.

However, following the order of 16 July 2021, two distinct questions remain, namely:

  1. Can the EPO insist oral proceedings take place via videoconference once the COVID-19 pandemic eventually comes to an end?

    AND

  2. Can the Examining and Opposition Divisions insist oral proceedings take place in the form of a videoconference at any time, including during the COVID-19 pandemic?

Accordingly, the question of whether Article 116(1) EPC creates a right to in-person oral proceedings at the EPO premises remains unclear and we must now await the Enlarged Board's written reasoning for its decision in G 1/21, which will hopefully provide an answer.

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