The Boards of Appeal have confirmed their position with respect to holding proceedings over videoconference (ViCo), declaring that in-person proceedings are to remain the default as opposed to merely being preferable over ViCo. Although it follows clear guidance from the Enlarged Board of Appeal decision G1/21, this decision comes somewhat as a surprise because not only does it contradict previous decisions applying G1/21 but it also goes against the EPO’s digital first strategy. There is now a clear division of emphasis: For EPO Oppositions ViCo is default, whereas for EPO Appeals in-person now seems to be.
The History of ViCo at the EPO
Oral proceedings via videoconference were introduced by the EPO as mandatory during COVID-19 which led to the introduction of the EPO management’s “Digital First” strategy in November 2022. This strategy stipulated that video conferencing would be the default format for oral proceedings in opposition from 1 January 2023 onwards.
Since the mandatory use of ViCo for oral proceedings during the pandemic, the Enlarged Board of Appeal decision G1/21 has set a precedent for the mandatory use of ViCo being permissible during a state of general emergency. G1/21 also provided guidance that in-person proceedings should remain the “Gold-Standard” since current technology does not allow ViCo to meet the standards of in-person proceedings.
Since G1/21 there has been some lack of harmony across the institution, with the direction taken by the Enlarged Board of Appeal directly contradicting the EPO’s Digital First strategy. This lack of harmony has meant that the Boards of Appeal have had to adopt a fairly fluid approach in deciding on relevant matters. Prior to this decision, the boards had taken the approach that ViCo technology has improved substantially since G1/21 such that it now meets the standards of in-person proceedings and therefore the guidance given in G1/21 is effectively out-dated (see for example T0758/20 and T1158/20).
The present decision, T2432/19, is the first to be in accordance with guidance given in G1/21.
Before the Proceedings
In the present case, the board issued a summons to oral proceedings in Haar, in response to which the proprietor of the European patent in question (EP2087873) requested that the proceedings be held by videoconference. The proprietor did not give reasons for this request.
The board then issued its provisional opinion and both parties were also informed that the proceedings may be held over videoconference, should the board find this appropriate. At this stage the parties were also asked if they had any reasons why they particularly did not wish for the proceedings to be held over videoconference. The opponent responded to this communication noting that they had no reasons to argue against ViCo proceedings, but they requested that both parties be informed as soon as possible if the board should decide to proceed with this format.
Contrary to the proprietor’s request, in-person oral proceedings took place in Haar on 25th April 2023.
At the Proceedings
In view of the direction taken in G1/21 the board raised the following points:
1. Although G 1/21 referred specifically to emergency situations (such as the COVID-19 pandemic), the board considered that the decision is not limited to such situations. For this reason, the board stipulated that in-person oral proceedings should be denied only under very limited circumstances.
2. Disagreeing with the decisions of other boards and instead taking clear guidance from G1/2, the board concluded that in-person proceedings were the optimal format, given today’s technology, and therefore ViCo can only provide a suboptimal form of communication between parties.
3. It follows, therefore, that the board also disagreed with previous decisions from the other boards that ViCo technology has improved sufficiently to render the decision of G1/21 out-dated.
“The Board cannot recognise any improvements that can be said to provide the level of communication which is possible when all participants are physically present in the same room… The parties rely on the same kind of hardware and software as were available at the time of G 1/21, i.e. the picture and sound quality is basically the same… The advantages of the gold standard thus remain as they were at the time of decision G 1/21.”
4. Finally, it also follows from the reasons underlying the Enlarged Board’s decision, that parties cannot force Boards to conduct videoconferences instead of in-person oral proceedings.
Taking all of the above points into consideration, the board came to the decision that in-person proceedings should be the default over ViCo proceedings.
As mentioned above, this decision sees this board take a different direction to that taken in previous Boards of Appeal decisions since G1/21 and side with the Enlarged Board of Appeal as opposed to following the EPO’s Digital First strategy.
On first glance, the decision may appear surprising as it directly contradicts the decisions of other boards, however this decision is perhaps more logical than the previous decisions, since it is somewhat of a stretch to claim that ViCo now provides the same standard of communication as in-person proceedings.
It will be interesting to see what comes of future decisions by the Boards of Appeal on this point. Will the boards continue to diverge or will this decision perhaps trigger a return to harmonisation and lead to in-person proceedings remaining the “Gold-standard” across the institution?