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

In the ninth episode of a podcast series celebrating the tenth anniversary of IP Inclusive, we discuss IP & ME, a community focused on ethnic minority IP professionals
Firms that made strategic PTAB hires say that insider expertise is becoming more valuable in the wake of USPTO changes
Aled Richards-Jones, a litigator and qualified barrister, is the fourth partner to join the firm’s growing patent litigation team this year
An IP lawyer tasked with helping to develop Brownstein’s newly unveiled New York office is eyeing a measured approach to talent hunting
Amanda Griffiths, who will be tasked with expanding the firm’s trademark offering in New Zealand, says she hopes to offer greater flexibility to clients at her new home
News of EasyGroup failing in its trademark infringement claim against ‘Easihire’ and Amgen winning a key appeal at the UPC were also among the top talking points
Submit your nominations to this year's WIBL EMEA Awards by February 16 2026
Edward Russavage and Maria Crusey at Wolf Greenfield say that OpenAI MDL could broaden discovery and reshape how clients navigate AI copyright disputes
The UPC has increased some fees by as much as 32%, but firms and their clients had been getting a good deal so far
Meryl Koh, equity director and litigator at Drew & Napier in Singapore, discusses an uptick in cross-border litigation and why collaboration across practice areas is becoming crucial
Gift this article