Oral proceedings by videoconference before the EPO's boards of appeal
08 March 2022
Oral proceedings by videoconference before the EPO’s boards of appeal is compatible with the EPC even if not all parties have given their consent, but only during a general emergency impairing the parties’ possibilities to attend in-person oral proceedings
The Enlarged Board of Appeal at the EPO (the Enlarged Board) has now published its decision on G 1/21. We previously reported that oral proceedings took place by videoconference on 2nd July 2021. However, the Enlarged Board did not announce its decision at the end of oral proceedings.
The Enlarged Board held that, during a general emergency impairing the parties’ possibilities to attend in-person oral proceedings, oral proceedings by videoconference may take place before the board of appeal even if not all parties give their consent.
However, the Enlarged Board maintained that in-person oral proceedings should be the default position, and videoconference without the parties’ consent should only be an option when justified by the circumstances.
Overview of the case
Briefly, the appeal is directed to whether the conduct of oral proceedings by videoconference is compatible with the right to oral proceedings if not all the parties have given consent for proceedings to take place via videoconference. Article 116 EPC provides parties with a right to “oral proceedings”, but does not specify the form in which oral proceedings should take place.
Travel restrictions resulting from the COVID-19 pandemic meant oral proceedings could not go ahead in person at the EPO. Initially, oral proceedings went ahead by videoconference if all parties agreed. However, in December 2020, the EPO released a statement allowing the boards of appeal to schedule oral proceedings by videoconference even without the agreement of the parties. This position was adopted into the legislation in January 2021 as Article 15a of the Rules of Procedure of the Boards of Appeal (RPBA).
Procedural issues
Prior to oral proceedings in G 1/21, a number of members of the Enlarged Board were replaced, as they had been involved in the preparation of Article 15a and were not considered to be impartial. The composition of the Board was changed in May 2021, and oral proceedings took place by videoconference in July 2021. The appellant filed further requests relating to the composition of the board, but these were rejected and do not warrant further discussion here.
Admissibility and scope of the referral
There are limited circumstances in which a board of appeal can refer questions to the Enlarged Board. Article 112 EPC specifies that questions can be referred either i) to ensure uniform application of the law, or ii) if a point of law of fundamental importance arises.
In this instance, the Enlarged Board considered the referral to meet both of these requirements. It noted that previous board of appeal decisions considered Article 116 EPC to allow oral proceedings by videoconference, whereas the referring board questioned this. Therefore, a decision from the Enlarged Board appeared necessary to ensure uniform application of the law. In addition, the question of whether practice of the boards of appeal in conducting oral proceedings by videoconference is compatible with the EPC represents a point of law of fundamental important. The relevance of this question to such a large number of cases also added to the importance of the referral.
The Enlarged Board admitted the referral, but consider the referred question to be too broad, noting that it was directed to any oral proceedings in any circumstances. The Enlarged Board reformulated the question to consider only oral proceedings before the boards of appeal, and to take into account that in light of the circumstances where oral proceedings could not take place in person. The reformulated question was:
“During a general emergency impairing the parties’ possibilities to attend in-person oral proceedings at the EPO premises, is the conduct of oral proceedings before the boards of appeal in the form of a videoconference compatible with the EPC if not all of the parties have given their consent to the conduct of oral proceedings in the form of a videoconference?”
Interpretation of Article 116 EPC
The purpose of Article 116 EPC is to specify when and on whose initiative oral proceedings are to take place. However, the Enlarged Board noted that it does not specify how oral proceedings should take place. Therefore, Article 116 EPC itself does not provide any indication or limitation on how oral proceedings should proceed.
Therefore, by default the term “oral proceedings” should be given its ordinary meaning, which the Enlarged Board did not consider to provide any indication of in-person proceedings. Therefore, subject to any indication to the contrary being identified, proceedings by videoconference should constitute “oral proceedings”.
The Enlarged Board accepted that in-person proceedings would have been envisaged during the legislative process leading to EPC 1973. However, this does not mean that the term Enlarged Board be limited to the specific form known when the EPC was first drawn up. In support of this, the Enlarged Board noted that technology not available when EPC 1973 was drafted – such as laptops, PowerPoint presentations and digital whiteboards – are commonly used in oral proceedings. Moreover, the Enlarged Board concluded that the Travaux preparatoires of the EPC 1973 do not demonstrate that the legislator intended to limit the scope of oral proceedings to in-person proceedings, so there was no indication that the in-person aspect was essential. The purpose of oral proceedings is to provide the parties with an opportunity to plead their case orally, and it was considered improbable that the legislator wished to rule out future formats.
The Enlarged Board also highlighted that the purpose of the EPC is to provide a system for granting European patents with the aim of supporting innovation and technological progress. Therefore, it would be at odds with the purpose of the EPC to exclude formats that might be made possible by technological progress.
In light of this, the Enlarged Board concluded that there was no basis to construe the term “oral proceedings” in a more limited sense than its ordinary meaning, so oral proceedings by videoconference were considered to comply with Article 116 EPC.
The Enlarged Board also discussed the challenge that if videoconferences where parties did not consent were considered to contravene Article 116 EPC, then videoconferences where the parties did consent would also contravene Article 116 EPC. However given the Enlarged Board’s conclusion, it is not necessary to discuss this further. A detailed discussion on this subject can be found at points 31 and 32 of the decision.
Is a videoconference equivalent to in-person oral proceedings?
Having established that the term “oral proceedings” is not limited to in-person proceedings, the Enlarged Board considered whether a videoconference is equivalent to in-person proceedings, and whether it is a suitable format for oral proceedings.
The Enlarged Board had previously set out the purposes of oral proceedings in R 3/10:
- to allow parties to make an oral presentation of its arguments;
- to allow the Board to ask questions;
- to allow the parties to respond to such questions; and
- to allow the Board and the parties to discuss issues.
In his amicus curiae submission, the President of the EPO considered videoconference to enable these essential features. However, the appellant and some third parties argued that videoconference lacked essential features because the “immediacy” that is present for in-person proceedings is missed. They argued that this results in less effective communication and limits the right to be heard.
The Enlarged Board acknowledged that videoconference does not provide the same level of communication as in-person proceedings. Therefore, it considered in-person oral proceedings to be the optimum format. Although videoconference technology aims to provide a close approximation of direct contact, the Enlarged Board noted that it does not yet provide the same level of communication possible when all participants are physically present in the same room. It also noted that the need to familiarise oneself with new technology and technical problems can put a strain on oral proceedings by videoconference. Moreover, in-person oral proceedings were considered to better reflect the importance of exchange between a court and the parties seeking justice.
Despite acknowledging the issues with videoconference, the Enlarged Board still considered that videoconference could meet the right to be heard and the right to fair proceedings. This is particularly the case given that EPO proceedings are mainly in writing, with oral proceedings providing an opportunity for the parties to present their written arguments orally.
The Enlarged Board was not persuaded by the argument that it is not possible to read body language during oral proceedings by videoconference, particularly given responses by the Board are generally by way of questions and comments rather than merely body language. The fact that participants of a videoconference cannot fully witness every possible physical expression does not make videoconference unsuitable for oral proceedings.
Therefore, despite the limitations of videoconference making it a “suboptimal” format for oral proceedings, the Enlarged Board did not consider it to impair a party’s right to be hear or right to fair proceedings in a manner that contravened the EPC.
The role of the parties’ consent
When considering whether the parties’ consent was required for oral proceedings by videoconference, the Enlarged Board again highlighted that in-person proceedings should be the default option. Therefore, parties should only be denied the option of in-person proceedings if there is a suitable alternative and there are circumstances justifying why oral proceedings are not to be held in person.
As noted above, although videoconference is not equivalent to in-person proceedings, it does represent a suitable alternative.
Turning to the need for circumstances justifying why oral proceedings are not to be held in person, the Enlarged Board explained that said circumstances should relate to limitations and impairments affecting the parties’ ability to attend oral proceedings in person at the EPO. Travel restrictions and quarantine obligations were given as examples of such impairments, along with “other health-related measures aimed at preventing the spread of disease”. However, administrative issues including the availability of rooms, interpretation facilities or intended efficiency gains do not constitute circumstances justifying not holding oral proceedings in person.
The Enlarged Board also clarified that the decision of whether good reasons justify a deviation from in-person oral proceedings is a discretionary decision of the board of appeal summoning a party/parties to oral proceedings.
In the appeal case underlying this referral, in-person proceedings were not possible in light of the COVID-19 pandemic, and excluding oral proceedings by videoconference would have led to a postponement of unknown length. The Enlarged Board pointed out that during a pandemic delays in finalising appeals could apply to a large number of cases and seriously impair the administration of judgement. Therefore, in these circumstances, it was justified to overrule the wish of the parties and to hold oral proceedings by videoconference.
The order
Therefore, the Enlarged Board decided that, during a general emergency impairing the parties’ possibilities to attend in-person oral proceedings at the EPO, oral proceedings by videoconference before the boards of appeal is compatible with the EPC even if not all parties give their consent.
Concluding remarks
The decision confirms that oral proceedings that took place by videoconference during the COVID-19 pandemic complied with the EPC and the resulting decisions are valid, providing legal certainty for a large number of cases.
Given this decision and the current easing of travel restrictions, it seems likely that in-person oral proceedings will return to being the default for board of appeal cases. However, we will continue to monitor the situation and how boards of appeal are responding to the Enlarged Board’s decision.
If you have any questions about the decision or how it might affect any of your cases, please do not hesitate to reach out.