Managing IP is part of the Delinian Group, Delinian Limited, 8 Bouverie Street, London, EC4Y 8AX, Registered in England & Wales, Company number 00954730
Copyright © Delinian Limited and its affiliated companies 2023

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

EPO: Enlarged Board endorses video hearings in appeal proceedings

Sponsored by


Jakob Pade Frederiksen of Inspicos P/S explains the EBA’s G 1/21 decision

On October 28 2021, the Enlarged Board of Appeal (EBA) issued its reasons for decision G 1/21 on the legality of the conduct of oral proceedings in the form of a videoconference (ViCo). The decision lays down that during a general emergency impairing the parties’ possibilities to attend in-person oral proceedings at the EPO premises, the conduct of oral proceedings before the boards of appeal by way of ViCo is compatible with the European Patent Convention even without the consent of all parties to the proceedings. The decision is specifically concerned with oral proceedings at the appeal stage only and is therefore not immediately applicable to oral proceedings at the first instance.

Regarding the parties’ right to oral proceedings enshrined in Article 116 EPC, the EBA holds that the term ‘oral proceedings’ is not limited to the specific form that was known at the time the EPC was drawn up, and that it would be at odds with the object and purpose of the EPC if the intention of the legislator was to exclude future formats for oral proceedings that might be made possible by technological progress.

In the context of the parties’ fundamental right to be heard pursuant to Article 113 EPC, the EBA expresses the view that in-person oral proceedings for now are the optimum format, even though the right to be heard or the right to fair proceedings, according to the EBA, can in fact be respected in the ViCo format. The in-person format should, however, be the default option. 

With respect to the conduct of oral proceedings by way of ViCo in the absence of the parties’ consent, the EBA notes that there must be circumstances that justify not holding the oral proceedings in person. Such circumstances may, e.g. relate to impairments affecting the parties’ ability to travel in case of a pandemic. 

Even though decision G 1/21 specifically addresses oral proceedings in appeal, there seems to be nothing that suggests that the reasons of the EBA would not be applicable to oral proceedings within the meaning of Article 116 EPC in general. It remains to be seen if the EPO adopts the findings of G 1/21 in respect of oral proceedings before the departments of first instance.


Jakob Pade Frederiksen

Partner, Inspicos P/S



more from across site and ros bottom lb

More from across our site

The country saw sweeping IP reform in 2020, but IMPI still needs to implement regulations governing the changes
Sources welcome the aims of the new UK Patents Court Guide, but some are unsure it will help juniors level up
US biosimilar cases will likely settle and patent thickets could be a bugbear for companies, say three in-house counsel and three private practice lawyers
The claim, filed this week against the University of California’s governing board, follows action by Accord Healthcare in October
We provide a rundown of Managing IP’s news and analysis coverage from the week, and review what’s been happening elsewhere in IP
EU lawyers say they should be allowed to cite bad faith at a much earlier stage in trademark disputes to avoid falling victim to squatters and ‘legal’ fakes
Amendments to the Patents Court Guide are a welcome step, but we must ensure everyone is on side
Counsel expect ripple effects from last year’s seminal decisions on patent term extensions and patentability of computer-related inventions, and much more
The Patent Trial and Appeal Board found that claims in a Novartis patent were obvious over the prior art
Rights owners say a copyright exception that would allow text and data mining for AI training would sell out the creative industries