As reported in the European Patent Office update earlier this year, the Enlarged Board of Appeal (EBA) of the European Patent Office (EPO) has been considering the question (referral case G 1/21) of whether or not EPO Boards of Appeal can dictate that oral proceedings are to be held by video-conference ("ViCo"), rather than in-person, against the wishes of the parties to the proceedings. 

Oral proceedings at the EPO are now almost exclusively held by ViCo, and a new rule of procedure of the Boards of Appeal (Article 15a RPBA) was introduced permitting a Board of Appeal to hold oral proceedings by ViCo whenever "the Board considers it appropriate to do so". New Article 15a RPBA applies to all oral proceedings taking place on or after 1 April 2021. The question referred to the EBA in G1/21 is whether Article 15a RPBA is compatible with the right to oral proceedings provided by Article 116(1) EPC, and stems from an appeal against a decision of the EPO Opposition Division to maintain European patent number 1609239 in amended form (appeal case number T1807/15).

Progress of G 1/21 has not been smooth. The Opponent initially objected to the composition of the EBA, on the grounds that some of the members of the Board were involved with the adoption of Article 15a RPBA, and could not be perceived as being impartial. As a consequence, the composition of the Board was changed shortly before the oral proceedings, held in May 2021. The EBA rejected the Opponent's request that further members of the Board be replaced.

The Opponent also objected that it had only been formally notified of the EPO President's comments on the case two days before the oral proceedings. Despite the fact that the President's comments had been available on the public register since April, the EBA accepted that proper procedures had nevertheless not been followed, and the oral proceedings were rescheduled for a later date.

The rescheduled oral proceedings were held on 2 July 2021. Following dismissal of some further requests by the Opponent, regarding the competence of the EBA to hear the matter and for a further delay to the proceedings, the EPO President's representative argued in favour of mandatory ViCo that Article 116 EPC does not specify how oral proceedings should be conducted, i.e. in-person or virtually, and that the decision to conduct proceedings by ViCo should thus be at the discretion of the EPO body in question. In response, the Opponent argued that Article 116 EPC makes no mention of ViCo, and that mandatory ViCo is a violation of of a party's right to a hearing in-person.

There was also a discussion regarding whether the preference of users of the system should be taken into account by the EBA when deciding the matter, and various statistics were quoted. For example, 30 of the 50 amicus curiae briefs submitted on the referral were against mandatory ViCo. However, prior to ViCo becoming mandatory only 300 oral proceedings had been held by ViCo, whereas since becoming mandatory over 3000 oral proceedings have been held by ViCo, which might suggest that it provides earlier legal certainty and access to justice for all parties.

The EBA did not give an answer to the question at the oral proceedings. Anecdotally, attitudes towards ViCo from European patent practitioners seems mixed. Most appreciate the convenience of ViCo, in terms of travel, time away from the office, etc, in particular for ex parte proceedings before the Examining Division. But for a big opposition appeal hearing, you'd want to be there in person, wouldn't you? The written decision of the Board is awaited with interest.