About the author
Andrew McKinlay – Patent attorney and senior associate Andrew has a passion for patent drafting and can quickly pick up the technical details of new inventions, building a rapport with inventors to efficiently prepare focused patent applications. He is regularly involved in contentious proceedings, with a focus on handling EPO oppositions, and providing patent attorney support to solicitor colleagues dealing with disputes in IPEC cases.
The EPO’s highest judicial body, the Enlarged Board of Appeal (EBoA), has today released its “order” (i.e. a brief summary of the outcome of judgement) in the case G1/21. The EBoA had been asked to rule on the legality of videoconferences in EPO oral proceedings before the Boards of Appeal, where not all the parties had consented to it.
The EBoA’s order reads 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.
Notably, the EBoA limited their judgement to circumstances that can be considered a “general emergency”, such as the COVID-19 pandemic. It appears that the EBoA has declined to give any more general guidance in relation to the legality of holding video conference oral proceedings without consent of the parties.
Although we will have to wait for the full written reasons of the judgement to issue before we draw any firm conclusions, the decision could well have an impact on the conduct of oral proceedings in examination and opposition proceedings beyond the pandemic.
Videoconference has been mandatory in examination and opposition throughout the pandemic, and the expectation has long been that the management of the EPO would look to continue to conduct proceedings in this way after the pandemic ends. This decision looks unlikely to be the ringing endorsement of that approach that will have been hoped for by the EPO management and other key stakeholders who are broadly in favour of the convenience, reduced environmental impact and reduced cost associated with videoconference hearings.
We will report further when the full decision is available. In the meantime, if you have any questions about oral proceedings, oppositions or appeals, please do not hesitate to get in touch.