Enlarged Board of Appeal hears parties' verbal arguments on whether oral proceedings by videoconference are compatible with the right to oral proceedings under Article 116 EPC

The EPO’s Enlarged Board of Appeal (EBA) has now heard the parties’ oral arguments on whether the conduct of oral proceedings via videoconference are compatible with the right to oral proceedings under Article 116(1) EPC if not all the parties have given their consent to the conduct of oral proceedings in the form of videoconference.  Oral proceedings took place on Friday 2^nd July 2021 by videoconference, but the EBA did not hand down its decision at the end of the proceedings.  We provide an overview of the proceedings in anticipation of the EBA’s decision.

 

Article 116(1) EPC states that oral proceedings shall take place if considered to be expedient by the EPO or at the request of any party to the proceedings.  The respondent in case T 1807/15 argued that “oral proceedings” in Article 116 meant in-person proceedings.  However, a statement from the EPO, dated 15 December 2020, allowed oral proceedings before the Boards or Appeal to be conducted via videoconference, even without the agreement of the parties, from 1 January 2021.  The ability of the Board to decide to hold oral proceedings by videoconference has since been adopted into the secondary legislation as Article 15a of the Rules of Procedure of the Boards of Appeal (RPBA).  The Board of Appeal in T 1807/15 reviewed the case law and concluded that the requirements for the format of oral proceedings had not been properly clarified, so referred the question to the EBA as a point of law of fundamental importance.

 

Following the invitation to file submissions on the question, more than 40 amicus curiae briefs were filed, indicating the widespread interest in the outcome of the referral.  The President of the EPO also provided written comments, indicating that oral proceedings by videoconference should comply with Article 116(1) EPC, irrespective of party consent.  He noted that Article 116 EPC is silent on the format of oral proceeding, concluding that it is for the competent department, and not the parties, to define the format of oral proceedings.

 

Prior to oral proceedings, objections had been raised about the impartiality of certain members of the EBA.  In response, the composition of the EBA was changed.  However, the appellant raised a further objection, which was dismissed in writing prior to oral proceedings.  The appellant raised this same objection again at oral proceedings, asking the board to declare itself incompetent and to postpone oral proceedings pending a new Board.  After deliberation, this request was dismissed and the proceedings turned to consider the referral.

 

The board heard arguments from both the appellant’s representatives and the representatives of the President of the EPO around whether the meaning of “oral proceedings” encompasses videoconference.  The appellant argued that oral proceedings by videoconference deprives parties of a right to in-person oral proceedings under Article 116 EPC, whereas the Presidents representatives maintained that the choice of format of oral proceedings is the decision of the relevant department of the EPO.  After a short break to discuss, the EBA closed the proceedings without handing down a decision.  We will provide an update once the decision has been published.