Diverging EPO appeal decisions regarding the use of videoconferencing

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

Diverging EPO appeal decisions regarding the use of videoconferencing

Sponsored by

inspicos-400px recrop.jpg
video-conference-1163880_1920.jpg

Jakob Pade Frederiksen of Inspicos says that clarification from the EPO Enlarged Board of Appeal may be necessary after a series of rulings concerning the format of oral proceedings in appeals

During the COVID pandemic, the EPO resorted to videoconferencing (ViCo) for holding oral proceedings in inter partes opposition cases, as well as in appeals. While the departments of first instance at the EPO have implemented the ViCo format as the default in first-instance oppositions, the legality – and, more widely, the applicability – of ViCO in appeals has been much debated.

EPO case law

In a decision of the EPO Enlarged Board of Appeal (EBA) handed down on October 28 2021, G 1/21, the EBA held that during a general emergency impairing the parties’ ability to attend in-person oral proceedings at the EPO premises, the conducting of oral proceedings before the boards of appeal by way of ViCo was not at odds with applicable law. The EBA, however, also expressed the view that in-person oral proceedings were the optimum format and should be the default option.

Subsequently, a technical board of appeal of the EPO decided, in decision T 1158/20 of November 22 2022, that holding oral proceedings by videoconference could often be considered an equivalent alternative to in-person oral proceedings in view of the experience that had been gained. Consistently, the same board of appeal decided on November 23 2022 in another case, T 758/20, that G 1/21 could not be read as restricting the possibility of summoning for oral proceedings by videoconference contrary to the will of one of the parties, only in the case of a general emergency.

However, another technical board of appeal held in a more recent decision, T 2432/19 of April 25 2023, that it followed from G 1/21 that in-person oral proceedings could only be denied under very limited conditions, even in a situation of general emergency such as a pandemic. Furthermore, due to the fact that videoconferences, at least with current technology, could only provide a suboptimal form of communication, parties had a right to the optimum format for oral proceedings – i.e., in-person oral proceedings – that could only be denied under very limited conditions.

An uncertain outlook?

It can only be speculated if the above decisions reflect diverging trends within the boards of appeal that will eventually necessitate a further case before the EBA to bring clarification.

more from across site and SHARED ros bottom lb

More from across our site

Tim Gilman, who joined Kasowitz alongside three other partners, says he is excited to be part of the firm’s ‘elite’ litigation team
A backlash against a White House video promoting deportation and Casalonga opening a new office in Düsseldorf were also among the top talking points
The firm has brought on board two counsel and an associate to complement two previously revealed partner hires
Bradford Newman, who has joined the firm’s new Silicon Valley office as head of complex technology disputes, discusses plans to build the practice group and attract local talent
Managing IP summarises the highlights from the IP STARS rankings for copyright and IP transactions work, the final firm rankings release of the year
Developments included the first judgment from the Nordic Baltic division, an injunction covering the UK, and a new code of conduct
Alston & Bird acted for InterDigital, while Samsung was represented by Fish & Richardson, during the arbitration process
Powell Gilbert lawyers reveal how they navigated parallel EPO proceedings and collaborated with European peers to come out on top in the Nordic-Baltic Division’s first judgment
The firms posted increases in revenue and profit per equity partner, with both giving a nod to their IP expertise
EasyGroup, the owner of the easyJet airline, said in a press release that UK-based first-instance judges are “less experienced”, bringing a long-running debate back to the fore
Gift this article