ViCo, Yes or No?

First Enlarged Board of Appeal Referral of 2021

In the first accepted referral of 2021, the EPO’s Enlarged Board of Appeal (EBA) has agreed to consider a question surrounding the legality of oral proceedings by videoconference. The question to be considered in G1/21 is:

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?

As a consequence of Covid, and to avoid a backlog of cases to be heard, the EPO began a pilot project of holding oral proceedings in opposition cases by videoconference in May 2020. However, proceeding by videoconference, rather than in person, required the consent of all parties involved.

In November 2020, following a successful initial phase, the EPO decided to extend the pilot project until 15 September 2021. The EPO further announced that for oral proceedings that were scheduled to take place on or after 4 January 2021, the agreement of the parties to hold oral proceedings in opposition proceedings by videoconference would no longer be requiredunder this pilot.

In appeal case T1807/15 the patent proprietor (respondent) requested that oral proceedings scheduled for June 2020 be postponed, in view of the Covid pandemic. The oral proceedings were therefore rescheduled for February 2021. In January 2021 the patent proprietor requested a further postponement, so that in-person oral proceedings could be held, and argued that oral proceedings by videoconference would not be suitable. The appellant also responded to the EPO, indicating that they agreed with this position. However, the oral proceedings proceeded in February 2021, by videoconference.

During the oral proceedings the appellant argued that oral proceedings by videoconference were not suitable and filed an auxiliary request, requesting that the matter be referred to the EBA.

Given the high level of interest in this matter, as many parties have attempted to have hearings postponed rather than proceed by videoconference, the EBA appears to be considering the matter on an expedited timeline, with oral proceedings scheduled for 28 May 2021. The outcome will be very interesting, particularly for cases where some or all parties have requested postponement in favour of an “in-person” hearing, but oral proceedings have been enforced by videoconference nonetheless. Watch this space…