G1/21 – Can Oral Proceedings be held remotely without the consent of the parties?
Is the consent of the parties is required to hold Oral Proceedings via video conference?
Further to our previous article discussing the pending decision of the Enlarged Board of Appeal (EBoA) of the European Patent Office (EPO), there has been a postponement of the oral proceedings in respect of this decision.
Our earlier article covers the referral in more detail, so the following is a brief summary of the referral.
The G1/21 referral relates to whether Article 15a of the Rules of Procedure for the Boards of Appeal (RPBA) as revised on 23 March 2021 (in force from 1 April 2021) is compatible with Article 116 EPC.
The revised Article 15a RPBA states:
(1) The Board may decide to hold oral proceedings pursuant to Article 116 EPC by videoconference if the Board considers it appropriate to do so, either upon request by a party or of its own motion.
The specific issue here is that Article 15a gives the Board of Appeal the power to appoint video-conferencing oral proceedings without the consent of the parties. In fact, in the appeal to a Technical Board of Appeal from which the referral was made, both the appellant and respondent requested the oral proceedings be held in person, owing to the need for simultaneous translation.
The Technical Board ignored this request, and so an auxiliary request was made that the below question was decided upon by the EBoA.
Is the conduct of oral proceedings in the form of a videoconference compatible with the right to oral proceedings as enshrined in Article 116(1) EPC if not all of the parties to the proceedings have given their consent to the conduct of oral proceedings in the form of a videoconference?
Given the number of oral proceedings held at the EPO each week, it is clearly of great importance to the EPO that any questions regarding the rights of the parties summoned to oral proceedings that a decision is made by the EBoA quickly.
With this in mind, oral proceedings were appointed via video-conference for 28 May 2021. This was an extremely quick turnaround for the EBoA, who were only referred the case on 12 March 2021.
At the proceedings, the opponent stated that they had only received 2 days’ notice of the comments of the President of EPO on the referral, and as such had not been given proper time to consider the comments. The opponent then requested a postponement of at least one month to consider these comments and make further submissions in light of the President’s comments.
The EBoA accepted this request and have since rescheduled the oral proceedings for 2 July 2021.
We shall keep you up to date with any further developments in the G1/21 appeal. If you have any questions about this decision or would like general advice on practice before the EPO, please get in touch to speak to one of our attorneys.