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 2025

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

With the US privacy landscape more fragmented and active than ever and federal legislation stalled, lawyers at Sheppard Mullin explain how states are taking bold steps to define their own regimes
Viji Krishnan of Corsearch unpicks the results of a survey that reveals almost 80% of trademark practitioners believe in a hybrid AI model for trademark clearance and searches
News of Via Licensing Alliance selling its HEVC/VCC pools and a $1.5 million win for Davis Polk were also among the top talking points
The winner of a high-profile bidding war for Warner Bros Discovery may gain a strategic advantage far greater than mere subscriber growth - IP licensing leverage
A vote to be held in 2026 could create Hogan Lovells Cadwalader, a $3.6bn giant with 3,100 lawyers across the Americas, EMEA and Asia Pacific
Varuni Paranavitane of Finnegan and IP counsel Lisa Ribes compare and contrast two recent AI copyright decisions from Germany and the UK
Exclusive in-house data uncovered by Managing IP reveals French firms underperform on providing value equivalent to billing costs and technology use
The new court has drastically changed the German legal market, and the Munich-based firm, with two recent partner hires, is among those responding
Consultation feedback on mediation and arbitration rules and hires for Marks & Clerk and Heuking were also among the major talking points
Nick Groombridge shares how an accidental turn into patent law informed his approach to building a practice based on flexibility and balancing client and practitioner needs
Gift this article