Under the EPC, it is a party’s right to request oral proceedings. It therefore makes sense that the choice of format for these oral proceedings can be made by the party who requested them.
The Enlarged Board held that the parties indeed have a fundamental right to oral proceedings that provide them with the opportunity to be heard. A hearing in person is the optimum format and a party may have good reasons to prefer in-person oral proceedings to a videoconference. Therefore, in-person hearings should be the default option. Parties can only be denied this option for good reasons.
What about the ongoing pandemic with its restrictions?
The Enlarged Board held that the ongoing pandemic with its associated travel restrictions (as well as restrictions on entry into the EPO premises) is a reason justifying the conduct of oral proceedings by videoconference, even without the consent of all of the parties. A point also taken into consideration by the Enlarged Board was the duration of the restrictions, and that postponement of oral proceedings (in a large number of appeals) would mean a serious impairment of the administration of justice.
The decision whether good reasons justify a deviation from the preference of a party to hold the oral proceedings in person remain a discretionary decision of the Board of Appeal in question.
Is there any way to avoid videoconference oral proceedings?
In order to deviate from the preference of a party requesting in-person oral proceedings, the Board must take into account that firstly, videoconference must be a suitable alternative to in-person hearing. If in a particular case a videoconference is not suitable, the oral proceedings will need to be held in person. Secondly, there must also be circumstances specific to the case that justify the decision not to hold the oral proceedings in person. These circumstances should relate to limitations and impairments affecting the parties’ ability to attend oral proceedings in person at the premises of the EPO.
How is the situation going to be once the pandemic is over?
The Enlarged Board made it quite clear that the question and its answer were limited to situations of general emergency, and hence, it can be expected that once the present restrictions are lifted, consent of all parties for videoconference oral proceedings will be required again for oral proceedings before the Boards of Appeal.
The Enlarged Board limited its decision to oral proceedings before the Boards of Appeal and there remains uncertainty as to the applicability of its reasons for oral proceedings before the opposition divisions, for instance. In our opinion, the reasons of G1/21 should be followed in opposition proceedings. However, as the EPO strongly promotes videoconferences, we expect that in-person oral proceedings will be arranged only in exceptional cases before examining divisions also after the pandemic.
In our opinion, oral proceedings by videoconference are a practical way to save travel time and costs in appropriate cases. However, some cases are better presented in person at the EPO premises. We will advise our clients on the best procedure on a case-by-case basis.