Oral proceedings at the European Patent Office called into question

As a response to the global Covid-19 pandemic, the European Patent Office has introduced the possibility of holding oral proceedings by videoconference. This applies not only to first instance proceedings (examination and opposition), but also to oral proceedings before the Boards of Appeal.

Originally, such proceedings by videoconference were held only with the consent of all parties to the proceedings. The EPO later announced that as of January 2021 this measure could be implemented even without the consent of all parties involved. However, in recent appeal proceedings (T 1807/15), the appellant argued that its right to oral proceedings under Art. 116(1) EPC was infringed if these were held by videoconference without its consent.

While the Board of Appeal considered that oral proceedings by videoconferencing with consent of the parties is compatible with Art. 116 EPC, it analyzed in detail the situation where a party does not consent. In doing so, it determined that at least the literal interpretation of Art. 116 and its interpretation in view of the preparatory works of the EPC indicated that videoconferencing without a parties’ consent would be incompatible with the right to oral proceedings. In light of the fundamental importance, the question of the legality of oral proceedings by video conference without consent of a party has now been referred to the Enlarged Board of Appeal (EBA), the highest judicial authority under European patent law. In essence, the EBA will have to determine whether such provision is compatible with the right to oral proceedings as enshrined in Article 116 EPC. Evidently, in view of the travel restrictions in Europe due to the pandemic and the current default practice of holding oral proceedings by videoconference at the EPO, the outcome of the referral may have a significant impact.

Oral proceedings in this case (G 1/21) are scheduled to be held on May 28, 2021 and GEVERS will keep you posted on the outcome. Interestingly enough, these will be held… by videoconference!

Stijn Lagaert – European Patent Attorney

François Lefèvre – European Patent Attorney