There is no doubt that the Covid-19 pandemic has altered the approach that the European Patent Office (EPO) has taken with respect to oral proceedings being held by video conferencing. Prior to 2020, whilst oral proceedings by video conferencing before an Examining Division was possible, this was not an option for Opposition or Appeal proceedings. A pilot project to allow such proceedings began in April 2020 for Oppositions and later in the year for Appeals. For proceedings before the Boards of Appeal, consent was required from all parties to the proceedings in order for them to be held via video conferencing.
A communication “EPO - Oral proceedings before the Boards of Appeal – continuation of the measures adopted due to the coronavirus (COVID-19) pandemic and revised practice on oral proceedings by VICO” dated 15 December 2020, outlined that as from 1 January 2021, oral proceedings before the Boards of Appeal may be conducted by video conference even without the agreement of the parties concerned as made clear in the new Article 15a RPBA. The entry into force of the new Article 15a RPBA is still subject to approval by the Administrative council, however, the communication also outlined that since the new provision clarifies an existing possibility, Boards may adapt their practice as regards to dispensing with the need to obtain agreement of the parties even before the date of entry into force.
However, the legality of holding oral proceedings without the consent of all parties has been formally questioned, with an Interlocutory Decision from an Appeal Board dated 12 March 2021 (Appeal number T1807/15-3.5.02) referring the following question to the Enlarged Board of Appeal:
“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 the parties to the proceedings have given their consent to the conduct of oral proceedings in the form of a videoconference?”
The question originally arose during an appeal against the decision of an Opposition Division concerning the maintenance of a European Patent. Oral proceedings took place by video conference on 8 February 2021 despite the parties citing their objections to the suitability of video conferencing for the proceedings.
During the proceedings, the appellant requested as an auxiliary measure that the following question be referred to the Enlarged Board of Appeal: “As to whether oral proceedings under Article 116 EPC can be replaced by videoconference without the parties consent”. In support, the appellant argued that holding oral proceedings in the form of video conferencing was not compatible with Articles 113(1) and 116 EPC which establish the rights of parties to be heard and the availability of oral proceedings for doing so.
Article 112(2)(a) EPC states that a Board of Appeal shall, during proceedings on a case and either of its own motion or following request from a party to the Appeal, refer any question to the Enlarged Board of Appeal if it considers that a decision is required to ensure uniform application of the law or if a point of law of fundamental importance arises.
The Board recognised that the above question relates to a point of law of fundamental importance because it is evident that said question could refer to an indefinite number of cases, particularly in view of the communication on the EPO website of 15 December 2020. Furthermore, the Board recognised that this issue is also applicable generally to first instance proceedings since Decisions of the President dated 10 November and 17 December 2020 outlined that oral proceedings can be held by video conference before the Examining and Opposition Divisions even without the parties’ consent. Accordingly, holding oral proceedings by video conference without the consent of all parties to the proceedings may become standard practice.
In phrasing the question to be referred, a number of interesting points were raised. In particular, the Board specifically decided to restrict the question to the consent of the parties. Despite arguments from the appellant, the Board did not see the need to seek clarification as to whether the use of video conferencing in general is compatible with Article 116 and Article 113 EPC. The Board also recognised that existing practices during oral proceedings held by video conferencing such as notifying the Chair of any technical issues and issuing a new summons if said technical issues prevent a party from being heard means that potential network instability does not preclude the use of video conferencing for oral proceedings.
A main point of discussion is therefore, whether Article 116 EPC stipulates the requirement for the format of oral proceedings. If it does so, what are these requirements? If holding oral proceedings by video conference without consent does not meet these requirements, then the parties’ fundamental right to be heard in accordance with Article 113 EPC are arguably also infringed.
As such, it appears that the final decision on this matter will be based on the construction and meaning of the term “oral proceedings” in Article 116 EPC. In considering this, the interlocutory decision outlines a number of different possible approaches that the Enlarged Board of Appeal may take. For example, taking a literal interpretation in view of the EPC, Article 116 could be construed to stipulate the right of the parties to be heard in person at oral proceedings. If this interpretation were to be endorsed, holding oral proceedings by video conference without a party’s consent would be considered incompatible with the law.
In considering other types of interpretation, such as teleological or dynamic, the Board will need to take into account that the interpretation of the term “oral proceedings” relates to a party’s fundamental procedural rights, that is the right to be heard and fair trial. Additionally, the question as to whether societal developments justify adapting the interpretation of oral proceedings. As we all know, the technology around video conferencing has improved considerably in recent years and the Covid-19 pandemic has increased its use. That being said, it remains to be decided if these changes go as far as to justify holding oral proceedings by video conferencing against the will of the parties or without their consent, as argued by the appellant of the above case.
While we wait for the outcome of this referral, it is worth noting that it is possible to request a stay in proceedings, if the outcome of those proceedings depends entirely on the answer to a question referred to the Enlarged Board of Appeal. Since this referral relates to a fundamental procedural aspect, there is no doubt that the outcome of this decision will have an impact on a great number of cases, as indicated by the Board of Appeal itself when considering its referral of this question. Therefore, on cases where a summons to oral proceedings by video conference has already been issued and in which one of the parties considers the use of video conference to violate their right to be heard, requesting a stay in proceedings pending the outcome of this referral may be an option.