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G1/21 – EPO’s Enlarged Board Okays ViCo Without Consent During Pandemic


16th Jul 2021

Following the oral proceedings that took place two weeks ago, the EPO’s Enlarged Board of Appeal has today (16 July 2021) given its answer to the referred question in case G1/21 – whether oral proceedings can be held by video conference without the consent of the parties.

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.

We do not yet have the full reasoned decision but it seems that the Enlarged Board has pointedly not answered the question of whether oral proceedings can be held by video conference without consent in all circumstances going forward. It looks like they thought a decision on this broader point was not needed by the referring Board, or needed for any other case that has been postponed because of the referral.

This decision confirms the status quo from the beginning of this year, when the EPO’s Boards of Appeal and Opposition Divisions began appointing oral proceedings by video conference without consent of parties as a result of the present pandemic. That practice can continue.

At the same time, the specific reference to a ‘general emergency’ limits the application of this ruling to the circumstances arising from the pandemic or other similar emergency situations. We look forward to reviewing the full decision on this case once it is published. In the meantime, parties who have had oral proceedings postponed while this referral has been pending should prepare for their oral proceedings to be reappointed.

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.

Author
Christopher Smith
Senior Associate
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