29 October 2021
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The Enlarged Board has now issued its full written decision in G 1/21 relating to videoconference oral proceedings. As reported in our previous blog, the Enlarged Board found that the Boards of Appeal may conduct oral proceedings by videoconference without the consent of all parties during a general emergency impairing the ability of the parties to attend in-person oral proceedings, such as the present Covid-19 pandemic. 

Despite finding that videoconference oral proceedings provide parties with the opportunity to present their case orally and are sufficient to comply with the principles of fairness of proceedings and the right to be heard, the Enlarged Board is firmly of the view that in-person oral proceedings are still the “optimum format”, describing them as the “gold standard”. However, they do acknowledge that the quality of the technology and videoconference set-up have a role to play in this, particularly with respect to determining body language and facial expressions clearly, which is why having bespoke equipment and an optimised set-up is so important while videoconference oral proceedings remain the norm.

The clear message is that the Enlarged Board believes that Board of Appeal hearings should be held in-person unless there are “good reasons” why this is not possible. In this respect, they have provided some guidance about what circumstances justify not holding oral proceedings in-person and these include general travel restrictions or disruption of travel, quarantine obligations, access restrictions to the EPO premises, and other health-related measures aimed at preventing the spread of disease. As such, the Enlarged Board has deliberately restricted itself to considerations that apply during the Covid-19 pandemic and has not provided examples of other “general emergencies” that might occur. There is also no indication of when the Enlarged Board expects the present pandemic to be considered over, or how this will be assessed. 

Although the Enlarged Board considers that in-person hearings are preferable from the point of view of transparency, there is an argument that videoconference oral proceedings actually provide greater transparency and better access for the public, as well as the interested parties. As a case in the point, the Enlarged Board hearing itself was streamed live to thousands of people around the world and the greater transparency that arises from videoconferencing was not addressed by the Board.

As expected, the Enlarged Board has restricted its findings to Board of Appeal oral proceedings, as well as to the specific situation arising from the Covid-19 pandemic, and we still do not know what format first instance Opposition Division oral proceedings will take after the end of January 2022. In particular, the Enlarged Board has avoided any reference to environmental considerations, despite the environmental benefits associated with videoconference oral proceedings, or considered the positive impact that videoconference oral proceedings may have on those who find it difficult to access in-person oral proceedings. These are potentially wider issues that the EPO may need to consider going forward. 

Read more in the EPO press communiqué.

Emily has commented on this decision previously in Intellectual Property Magazine and ManagingIP.

Most of Emily’s work is in the Life Sciences sector, with a focus on biotechnology. Emily has extensive experience drafting and prosecuting patent applications, as well as global portfolio management, which means that she has experience prosecuting applications not just at the European Patent Office, but worldwide. Emily has a sizeable oppositions and appeals practice and she is extremely experienced at handling hearings before the EPO.

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