G1/21: a look at video conferencing at the EPO

As previously reported, the following question was referred to the Enlarged Board of Appeal (EBA):

Does the European Patent Convention (EPC), specifically Article 116 EPC, allow oral proceedings to be conducted via video conference against the will of the parties?

The crux is whether Article 116 EPC should be interpreted as guaranteeing the right to an ‘in-person’ oral proceeding, or whether video conferencing (ViCo) may be considered to fulfil the requirements for an oral proceeding.

The EPO President has made public commitments to developing a ‘new normal’ through the use of ViCo and submitted comments to support this position. Key arguments in his submission included the fact that “…a ViCo…contains the essence of an oral proceedings, namely that the board and the parties/representatives can communicate with each other simultaneously”.

50 amicus curiae briefs were filed: 32 briefs against mandatory ViCo, nine in favour, and nine neutral briefs.

The first oral proceedings were postponed for procedural reasons.

Among the appellant’s arguments regarding the interpretation of the term ‘oral proceedings’, were important points on the need for an impression of a fair trial, the need for procedural efficiency and the historical distinction between opting for ViCo versus formally waiving the right to in person proceedings.

At the second oral proceedings, the first round of arguments dealt with procedural matters.

In the second round, the representatives of the president stressed the importance of an answer to the referred question that could be generally applied, in order to ensure legal certainty. Their most important substantive argument was that the law should be interpreted in today’s context and not that of the date of its origin.

A crucial argument of the appellant was that in a codified legal system such as the EPC, judicial interpretation must not stray into judicial legislation, whereby the original meaning of the legislation is altered. The appellant’s position is that the rights conferred by Article 116 EPC are not satisfied by oral proceedings held by ViCo. Since oral proceedings are held only at the request of the parties, it is their prerogative to consent to alternatives which do not fulfil Article 116 EPC.

Board members posed questions relating to: which criteria are to be applied when deciding between the forms of oral proceedings, what the general legal basis for oral proceedings via ViCo may be, on what basis the purported right for an in person oral proceedings may be restricted, why the will of the party should not matter, and whether the ViCo practice is to be continued post pandemic.

The main position of the representatives of the president was that ViCos were always sufficient for Article 116 EPC and choice of form is solely at the discretion of the presiding body. The appellant’s main position was that the rights conferred by Article 116 EPC are not satisfied by ViCos per se and to allow this would require a change in the law.

A written decision is expected in due course.     

Eva EhlichPartner, MaiwaldE: ehlich@maiwald.euAngela ZumsteinPartner, MaiwaldE: zumstein@maiwald.euJames NeuhausPatent attorney trainee, MaiwaldE: neuhaus@maiwald.eu

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