Last July, the Enlarged Board of Appeal of the EPO issued decision G1/21, which authorises oral proceedings before the Boards of Appeal via videoconferencing during a period of general urgency, even if all parties have not given their consent. Cyrille Poindron outlines what this means in practice.
Oral proceedings are explicitly provided for by the European Patent Convention (EPC) if the European Patent Office (EPO) deems it useful, or upon request of one of the parties. In fact, it is often the last possibility for those parties to discuss a case under examination, opposition or appeal before the decision that closes the procedure. Accordingly, the oral procedure is almost always requested as a precaution; in particular, if an unfavourable decision is expected.
Since the beginning of the European patent (EP) in the 1980s, oral proceedings have been held in person at the EPO premises (Munich, The Hague or Berlin). Thanks to technological progress, oral proceedings have been held for some years now in the form of videoconferencing, if so requested by the parties, during examination proceedings.
As a result of the COVID-19 health crisis, oral proceedings by videoconference have become the norm, both in examination and in opposition or appeal, so as not to delay decisions. However, in some cases, parties have requested to maintain the oral proceedings in person, even if it means postponing the date because of the imposed travel restrictions. These requests to postpone and challenge the videoconference led the Enlarged Board of Appeal to consider the following question: is an oral procedure by videoconference compatible with the European Patent Convention (EPC), even if not all parties agree?
Is videoconferencing a choice or an obligation?
The initial answer was published in July last year and can be summarised as follows: "In cases of general urgency, oral proceedings before the Boards of Appeal in the form of videoconferencing are compatible with the EPC, even if not all parties have given their consent.” The full decision, published at the end of October, is an interesting read, providing a number of additional insights.
Firstly, it’s clear that the Enlarged Board of Appeal limited its answer to the appeal proceedings, as only this answer is necessary to allow the Board of Appeal that asked the question to rule on its case. Furthermore, the Enlarged Board of Appeal states that the term ‘oral proceedings’ is not limited to face-to-face proceedings. Rather, it is sufficient to be able to express oneself orally, even though when the article on oral proceedings came into force, no alternative to face-to-face meetings existed.
Secondly, the Enlarged Board of Appeal examined whether videoconferences are equivalent to face-to-face meetings and concluded that they are not. Even if one cannot, for example, have the same immediacy or the same reading of body language, videoconferences allow one to present one's case orally and allow the right to be heard to be respected.
The Enlarged Board of Appeal goes on to consider whether a party really has a "right to face-to-face proceedings". It is interesting to note that the Enlarged Board of Appeal considers that face-to-face proceedings are and remain the optimal way to conduct oral proceedings, and therefore constitute the "golden rule". Consequently, there must be good reasons for depriving a party of this golden rule, and the pandemic and travel restrictions are a reason to be considered in this category. On the other hand, the availability of rooms, interpreters and even the efficiency gains linked to videoconferencing are not to be taken into account in order to refuse a face-to-face procedure.
The Enlarged Board of Appeal concluded by considering the situation in European countries and noted that in some states videoconferencing may be made conditional on the consent of the parties, or imposed without the consent of the parties. In general, however, it noted a general reluctance to impose this format. As a result, the Enlarged Board of Appeal limited its decision to situations of general urgency.
In other words, videoconferencing in appeal proceedings will only be imposed during periods of general urgency and that oral proceedings in person remain the golden rule.
For further information on oral proceedings at the EPO or for assistance with European Patents more generally, please contact your Novagraaf attorney.
Cyrille Poindron is Director of Novagraaf’s Mechanical & Process Department and is based in Geneva.