New Referral to the Enlarged Board of Appeal of the EPO on Oral Proceedings via Video Conference
Based on the interlocutory decision T 1807/15, the question whether conducting oral proceedings in the form of a videoconference is compatible with the right to oral proceedings if not all parties have given their consent, has been referred to the Enlarged Board of Appeal, which will be handled as G 1/21.
According to the previously reported decision of the President of the EPO of 10 November 2020, which entered into force 1 January 2021, the agreement of the parties to hold oral proceedings in opposition proceedings by videoconference is no longer required. Oral proceedings before the opposition division are to be held mandatorily by videoconference, provided there are no serious reasons against holding the oral proceedings by videoconference.
Similarly, the boards of appeal may conduct oral proceedings by videoconference without the consent of all parties. The new practice has been laid down in new Article 15a of the Rules of Procedure of the Boards of Appeal as approved by the Administrative Council of the EO and which entered into force on 1 April 2021.
In the case T 1807/15, a request was filed to postpone the oral proceedings for COVID-19 related reasons and both parties submitted that oral proceedings were not suitable for a videoconference. Oral proceedings nevertheless took place before the Board of Appeal on 8 February 2021 without the parties’ consent.
During the oral proceedings, one of the parties requested to refer the question whether oral proceedings may be carried out by videoconference without the parties consenting to the Enlarged Board of Appeal.
The Enlarged Board of Appeal accepted this case (G1/21), and the oral proceedings before the Enlarged Board of Appeal are to take place on 28 May 2021 already and - via video conference.
It is noteworthy that video conferences scheduled before the EPO are not put on hold for the time G1/21 is pending. The President of the EPO has decided that in order to guarantee access to justice and ensure the functioning of the EPO, oral proceedings before examining and opposition divisions will continue to be held by videoconference in accordance with the applicable decision of the 10 November 2020 without requiring the parties’ agreement.
More details on the G1/21 pending before the Enlarged Board of Appeal may be found under https://www.epo.org/law-practice/legal-texts/official-journal/information-epo/archive/20210324.html and https://www.epo.org/law-practice/case-law-appeals/eba/pending.html.