Updated 18 March 2021: The EPO’s Enlarged Board of Appeal has appointed oral proceedings to be held (by video conference) on 28 May 2021. The appointment of oral proceedings in May is unusually fast compared with previous appeals to the Enlarged Board.
We attended oral proceedings last month on case T1807/15 and learned that the Board of Appeal would make a referral to the EPO’s Enlarged Board of Appeal on video conference oral proceedings without parties’ consent. We have received a copy of the written interlocutory decision of the Board of Appeal. We now know that a single question has been referred to the Enlarged Board:
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 of the parties to the proceedings have given their consent to the conduct of oral proceedings in the form of a videoconference?
This question will now be passed to the Enlarged Board of Appeal. If timelines of previous Enlarged Board cases are followed, then we would expect to receive a communication from the Enlarged Board in the next month confirming the referral, and then further communications inviting submissions from the President of the EPO and any interested third parties, followed by a summons to oral proceedings. Many will want the Enlarged Board to decide this matter promptly because of the possible effect on other pending appeals.
As part of the written decision, the Board of Appeal for T1807/15 reviewed case law and suggested that a literal interpretation of the law supported the right to oral proceedings under Article 116 being understood as a right to in-person oral proceedings, and that this was further supported by the EPC’s Travaux Préparatoires. The Board of Appeal also considered whether a teleological interpretation was appropriate, or even a dynamic interpretation (as applied in G3/19 (Pepper)) but appeared to favour the literal interpretation. Overall, the Board in T1807/15 seem to favour the conclusion that oral proceedings must be held in person unless all parties consent to video conference.
But ultimately this is now – officially – an issue for the Enlarged Board of Appeal, who may decide differently.
If you have questions about video conference oral proceedings in general or this decision in particular, please get in touch with the authors below or your regular Reddie & Grose contact.
This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking any action in reliance on it.