Germany: EBA set to hear case on the legality of the EPO’s video proceedings

Managing IP is part of Legal Benchmarking Limited, 1-2 Paris Gardens, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2026

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Germany: EBA set to hear case on the legality of the EPO’s video proceedings

Sponsored by

maiwald-logo-cropped.PNG
alexander-shatov-niukimzcsp8-unsplash.jpg

Eva Ehlich and Angela Zumstein of Maiwald explore why video conference technology at the EPO has caused widespread concern

The Enlarged Board of Appeal (EBA) of the EPO will soon decide on an interesting question on whether oral proceedings before the EPO can be conducted by video conference, even against the will of the parties.

In May 2020, there was little expectation that appeal case T 1807/15 would lead to a landmark decision. After all, it only related to the maintenance (or not) of a patent relating to a radio frequency amplifier, a routine type of case at the EPO.

This case was the first in a long line of similar cases. Since the first wave of the COVID-19 pandemic began in 2020, quite a few oral hearings at the EPO have had to be postponed. Up until that point, conducting oral proceedings via video conference was contingent on the consent of the parties. However, statistical evidence shows that little use was made of video conferencing. As a result, the backlog of pending first instance proceedings continued to grow, because the coronavirus restrictions had led to a stay of almost all proceedings.

Unlike the EPO, during the year 2020, the Boards of Appeal conducted oral proceedings in different formats – such as with the parties present in person, with the parties connected by video conference or through a hybrid setting.

In December 2020, the President of the Boards of Appeal nevertheless requested the Boards of Appeal Committee to add a new Article 15a to the Rules of Procedure of the Boards of Appeal.

This is also consistent with the decision of the EPO President. Article 15a specifies that the Boards of Appeal may in principle conduct oral proceedings under Article 116 EPC via video conference, without the consent of the parties. The Boards of Appeal Committee made an ordinance to this effect and the Administrative Council approved the new Article on March 23 2021. However, this measure is not subject to any time limit and is therefore not only limited to the period of the pandemic.

The Board of Appeal responsible for this case referred the following question to the EBA, however, without reference to the new Article 15a of the Rules of Procedure of the Boards of Appeal:

Does the EPC, specifically Article 116 EPC, allow oral proceedings to be conducted via video conference against the will of the parties?

 

Should the EBA come to the conclusion that the EPC would not allow this, not only Article 15a of the Rules of Procedure, but also the measures taken by the EPO to combat the effects of the pandemic would for the future be nullified.

The hearing in the case before the EBA will take place on May 28 2021, interestingly in the form of a video conference.

 
Eva EhlichPartner, MaiwaldE: ehlich@maiwald.eu Angela ZumsteinPartner, MaiwaldE: zumstein@maiwald.eu

more from across site and SHARED ros bottom lb

More from across our site

Regulatory changes and damages risks are prompting Canadian firms and clients to opt for settlements in generic and biosimilar cases
News of Via Licensing Alliance adding two new members and Nokia’s proposal to extend interim licences to Warner Bros Discovery and Paramount were also among the top talking points
A new claim filed by Ericsson, and a request for access to documents, were also among recent developments
Cooley and Stikeman Elliott advised 35Pharma on the deal, which will allow GSK to get its hands on S235, an investigational medicine for pulmonary hypertension
Simon Wright explains why the UK should embrace the possibility of rejoining the UPC, and reveals how CIPA is reacting to this month’s historic Emotional Perception AI case at the UK Supreme Court
Matthew Grady of Wolf Greenfield says AI presents an opportunity in patent practice for stronger collaboration between in-house and outside counsel
Aparna Watal, head of trademarks at Halfords IP, discusses why lawyers must take a stand when advising clients and how she balances work, motherhood and mentoring
Discussion hosted by Bird & Bird partners also hears that UK courts’ desire to determine FRAND rates could see the jurisdiction penalised in a similar way to China
The platform’s proactive intellectual property enforcement helps brands spot and kill fakes, so they can focus on growth. Managing IP learns more about the programme
Hire of José María del Valle Escalante to lead the firm’s operations in ‘dynamic’ Catalonia and Aragon regions follows last month’s appointment of a new chief information officer
Gift this article