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EBoA of the EPO, decision of July 2021, published on October 28, 2021, case no. G 1/21, reported by Dr. Georg Anetsberger and Dr.-Ing. Felix Grödl, BARDEHLE PAGENBERG

In the case G 1/21, the question was referred to the Enlarged Board of Appeal (EBoA) of the EPO, whether conducting oral proceedings in the form of a videoconference is compatible with the right to oral proceedings as enshrined in Article 116(1) EPC if not all of the parties to the
proceedings have given their consent to the conduct of oral proceedings in the form of a videoconference.

With its long-awaited decision, the EBoA did not give a full answer to this question. Instead, it limited its scope to the circumstances of the present COVID-19 pandemic and to proceedings before the Boards of Appeal, BoA (s. reasons, ref. 16). In one aspect, however, it broadened the referral: besides the compatibility with Art. 116 EPC, the general combability with the EPC and  particularly with Art. 113 EPC, i.e. the parties’ right to be heard, was assessed.

In its headnote, the EBoA decided as follows:

During a general emergency impairing the parties’ possibilities to attend in-person oral proceedings at the EPO premises, the conduct of oral proceedings before the boards of appeal in the form of a videoconference is compatible with the EPC even if not all of the parties to the proceedings have given their consent to the conduct of oral proceedings in the form of a videoconference.

The EBoA thus rejected (for the time being) the wish of the President of the EPO to leave the choice of the format of oral proceedings to the EPO or the BoA (EPO President comments on referral G 1/21, dated April 27, 2021), respectively. Instead, it followed the opinion expressed in a majority of over 50 amicus curiae briefs that in general a negative answer to the referred question would be favorable, however in the circumstances of the present COVID-19 pandemic holding oral proceedings by video conference without the consent of the parties might be justified. While not expressly addressed by the EBoA, the reasoning of G 1/21 also allows conclusions to be drawn for post-pandemic times as well as for first instance proceedings before the EPO.

The reasoning is based on four pillars, including the interpretation of Art. 116 EPC, the (non-)equivalence of videoconferences and in-person hearings, the role of the parties’ consent and finally a comparison with developments in the EPC Contracting States:

First pillar
The EBoA expressed that Art. 116 EPC does not require in-person oral proceedings but merely oral proceedings, i.e. proceedings based on the spoken word. Even though the legislator back in 1973 most certainly considered oral proceedings to be proceedings that take place in-person, oral proceedings should not be limited to this format. Instead, they should include formats that are or will become available due to technical progress. Thus, the EBoA concluded that oral proceedings in the form of a videoconference are oral proceedings within the meaning of Art. 116 EPC (reasons, ref. 30), with the effect that all provisions and practices that are known from common in-person oral proceedings apply to a videoconference. The EBoA highlighted the importance of visual elements in the interaction in oral proceedings indirectly by considering telephone conferences as clearly unsuitable given the absence of visual communication in this format (reasons, ref. 41).

Second pillar
The EBoA found that videoconferences and in-person hearings are – at least for the time being – not equivalent and hence videoconferences are in principle not the optimal format, particularly, as the communication is less direct and suffers from technical constraints. Further, the EBoA highlighted that in-person oral proceedings – at least for final decision making – are preferred as they enhance transparency of the justice system and its function in society (reasons, ref. 39). However, the EBoA outlined that written submission form the basis of proceedings before the EPO and are complemented by oral proceedings only. Even if held as videoconference, this format of oral proceedings allows to present a case orally. This also fulfills the purpose of oral proceedings defined in R 3/10, i.e., that they should inter alia allow the BoA and the parties to discuss issues, so that matters can be clarified (reasons, ref. 34). Therefore, although they may be suboptimal (reasons, ref. 43), videoconferences are generally sufficient to respect the parties’ right to be heard and the right to fair proceedings (reasons, ref. 40).

Third pillar
However, the EBoA found that in-person hearings should be the default option – or: the gold standard –, as they definitely fulfill the requirements of Art. 113 EPC and Art. 6 ECHR (reasons, ref. 45). Parties can only be denied this option for good reasons. Regarding those reasons, the EBoA defined three hurdles. Firstly, there must be a suitable, even if not equivalent, alternative to in-person proceedings, which may usually be provided by a videoconference. But if, in a particular case, a videoconference is not suitable, in-person oral proceedings will need to be held (reasons, ref. 48). Secondly, there must also be circumstances specific to the case that justify the decision not to hold the oral proceedings in-person, such as limitations and impairments affecting the parties’ ability to attend oral proceedings in-person (e.g. pandemic-induced travel restrictions). Administrative issues such as the availability of conference rooms, interpretation facilities or intended efficiency gains are not enough (reasons, ref. 49). Thirdly, there must be a discretionary decision of the BoA summoning to the oral proceedings (reasons, ref. 50). In other words, the decision whether or not oral proceedings can be held as a video conference before a BoA without the parties’ consent requires an assessment on a case-by-case basis.

Fourth pillar
The EBoA concluded that Contracting States have different regulations regarding oral proceedings to be held as videoconference and the requirements regarding the parties’ consent. Thus, it finds itself unable to derive any recommendations for action from the practice of the Contracting States. Apart from that, the EBoA outlined that, in contrast to the national courts, the parties and their representatives before the BoA often come from various countries. In that sense, the BoA resemble the European Court of Human Rights or other international courts, which do allow hearings by videoconference in the present exceptional pandemic situation. However, the EBoA also pointed to “considerable reticence” to extending this practice beyond the present pandemic and correspondingly expressly limits the scope of its answer to a period of general emergency (reasons, ref. 56).

Summarizing, even though the EBoA limited the referral to a period of general emergency and proceedings before the BoA, the reasons of the decision allow an outlook for the post-pandemic era as well as for first instance proceedings before the EPO:

Primarily, it seems that holding oral proceedings by videoconference without the consent of the parties, cannot be considered as being the “new normal”. Instead, the EBoA required good reasons to deny a party’s request to in-person oral proceedings. Circumstances specific to the case must be at hand that justify depriving the parties of the gold standard of in-person oral proceedings. Only considerable further technical progress, enabling video conferences that can be considered (nearly) equivalent to in-person oral proceedings, could be a game-changer, but such technical progress does not seem to be on the horizon.

Secondarily, as the decision references to Art. 113 and 116 EPC, which are part of the common provisions of the EPC (Part VII, chapter I) and are hence not specifically directed to appeal cases but to all proceedings before the EPO, it must be assumed that the answer provided by G 1/21 should similarly also be applicable for first instance proceedings. Thus, for the time being, only in case of general emergency should oral proceedings by videoconference be imposed on the parties by the EPO, and this would require a case-by-case decision. A general order would then not be sufficient in this regard.

Going forward, as long as the present pandemic continues, video conferences may thus be avoided by arguing that an individual case is per se unsuitable to be decided in a videoconference. No examples are given by the EBoA when this would be the case. Certainly, in view of G 1/21, amended Rules 117 and 118 that entered into force on January 1, 2021, and that allow hearing witnesses and inspecting evidence via videoconference will have to be applied carefully.

Another aspect to consider is that, according to the requirement of a discretionary decision in G 1/21, it would likely be in the discretion of the deciding body to determine whether or how long the present pandemic can still be considered as a case of general emergency. Hence, arguments along these lines may be worthwhile for the parties concerned to avoid a video conference.