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

Partners at Foley Hoag examine how recent CJEU jurisprudence may serve as a catalyst for recalibrating US judicial reluctance to entertain foreign patent claims
International law firms have high hopes for their IP practices in Saudi Arabia, with many opening offices, but recruiting and retaining talent in the Kingdom presents unique challenges
Patrick Ogola joins us for our ‘Five minutes with’ series to discuss helping African entrepreneurs on the global stage, and explains why young lawyers should speak up
Heli Pihlajamaa, the EPO’s principal director for patent law and procedures, joins us to take stock of the unitary patent following its second anniversary
Kelly Thompson, chair of South African firm Adams & Adams, discusses self-belief, self-doubt, and the importance of saying yes
The renowned food brands were represented by a host of lawyers, including members of the firms’ IP teams
Partners at Bird & Bird and Taylor Wessing discuss how Saudi Arabia offers unique opportunities for firms dealing in IP and tech
Attorneys explain why there are early signs that the US Supreme Court could rule in favour of ISP Cox in a copyright dispute
A swathe of UPC-related hires suggests firms are taking the forum seriously, as questions over the transitional stage begin
A win for Nintendo in China and King & Spalding hiring a prominent patent litigator were also among the top talking points
Gift this article