Diverging EPO appeal decisions regarding the use of videoconferencing

Managing IP is part of Legal Benchmarking Limited, 4 Bouverie Street, London, EC4Y 8AX

Copyright © Legal Benchmarking Limited and its affiliated companies 2024

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

Diverging EPO appeal decisions regarding the use of videoconferencing

Sponsored by

inspicos-400px.png
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 ros bottom lb

More from across our site

Renowned litigator Tim Powell, who helped found Powell Gilbert in 2007, is the latest in a string of hires for the US firm
We provide a rundown of Managing IP’s news and analysis from the week, and review what’s been happening elsewhere in IP
The termination of the USPTO's programme ends one way of requesting reviews of claim amendments, but counsel have other options
To mark this year’s World Mental Health Day, IP Inclusive’s Andrea Brewster urges law firms to allow staff to prioritise their mental health without impunity
With the submission deadline fast approaching, we provide some top tips on how to make your firm stand out
On World Mental Health Day, Elizabeth Rimmer shares why legal wellbeing charity LawCare could be heading for its ‘moment in the sun’
In our latest UPC update, we review two decisions by the Court of Appeal, summarise the latest court data, and preview upcoming hearings
James Davies and Vishen Pillay at Adams & Adams discuss IP protection strategies and ownership considerations for AI
HGF CEO Martyn Fish tells Managing IP in an exclusive interview what private equity firm CBPE’s minority investment in the firm means for the business and its people
In-house counsel and teams can now submit information for the 20th annual Managing IP Awards programme
Gift this article