Opinion: We must end VICO debate once EPO case is settled
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Opinion: We must end VICO debate once EPO case is settled

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The EPO Enlarged Board of Appeals has addressed an impartiality concern over its assessment of mandatory virtual hearings – now, whatever the case outcome, we must put the issue to bed

This week, many of us – as we have throughout the pandemic – will tune in to watch something online that we may have otherwise attended in person.

On Friday, May 28, the EPO Enlarged Board of Appeal (EBoA) will finally consider whether oral proceedings at the Boards of Appeal (BoA) can be conducted by video conference (VICO) without the consent of all parties.

The BoA first confirmed it would hear the matter (G1/21) in February. Since then, 48 amicus curiae have been filed from companies including BASF, Philips, Bayer and Siemens.

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Panel shake-up

Some of the intervenors in this highly controversial matter have raised impartiality concerns.

The European Patent Institute (EPI) was one such organisation to complain. Its most compelling grievance was that BoA president Carl Josefsson, who was involved in the drafting of the original article (Article 15a) allowing for VICO hearings, was due to sit on the EBoA panel hearing the dispute.

The EPI’s curiae, and its concurrent letter to Josefsson, prompted the EBoA to issue an interlocutory decision changing the composition of the panel.

In the decision, published on May 17, the EBoA found there was a justified fear of partiality in the case of Josefsson, who has now been replaced by EBoA member Fritz Blumer.

It is important to note that neither the EPI nor the EBoA had reason to suspect bad faith on the part of Josefsson.

But, according to the EPI, as he considered Article 15a to conform with the European Patent Convention, it gave rise to “the appearance of partiality”.

I have mixed views on this.

On one hand, Josefsson was reportedly required to draft the article with relatively short notice and in a situation where there was little, if no, alternative.

On the other, I can see why the EPI would have some concerns surrounding Josefsson’s inclusion. At least now there can be no suggestion that there was a vested interest in ruling that Article 15a was lawful.

Common sense wins

Other concerns raised by the EPI, some private practice attorneys, and national patent associations have not been dealt with in the interlocutory decision.

Among them is the suggestion that because the hearing is taking place by VICO, this indicates an apparent preference for that platform.  

I struggle to see how this could be true.

There is nothing suspicious about the EBoA’s decision to host the hearing virtually – it is merely abiding by safety guidelines.

Take into account the BoA’s international make-up – the panellists and law firms involved are from various jurisdictions – it is even more apparent that hosting the hearing in person would be a recipe for disaster.

Panellists, lawyers and witnesses from across Europe descending on the EBoA headquarters while the pandemic recovery is at a crucial stage would not be realistic or sensible. Nor would an indefinite delay until in-person hearings are risk free (which may never be the case).

As one source previously told me, hosting a hearing about the legality of VICO by VICO might seem somewhat paradoxical, but common sense has to win.

The ability to pick up on body language and read a witness has also been identified as a benefit to in-person hearings. However, I struggle to see when this would be hugely relevant in cases surrounding the validity of a patent.

We are talking about issues of patent law, not murder trials. As one source points out, the veracity of witness testimony is rarely an issue.

Underpinning all this of course – though not fully admitted by those affected – is the fully expected consequence that Munich-based firms within a short distance of the EPO’s headquarters would be about to lose their unique selling point.

Back to normality

Those against mandatory VICO hearings say they are not against the idea of virtual hearings per se but that parties must have the option of appearing in-person if they wish.

On paper, this is all well and good, but given that some parties’ decision to decline a virtual hearing has been identified as a possible delay tactic, this cannot and should not continue.

Even allowing one party to appear in-person and another virtually would seem pointless and would create an obvious avenue for one side to claim they were at a disadvantage.

The only option, then, is to proceed with VICO where necessary – even if both parties are not happy.

Businesses need to get back to some form of normality. The EBoA has moved to address the main concern that could have potentially cast doubt on the ruling. Now is the time to answer the core question once and for all.  

Virtual hearings have – for the most part – been proven to work, and the sooner we get clarity on whether they can become the norm, the better. Let’s hope this week is the start of that.

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