EPO Enlarged Board Decision G1/21 – video conferencing vs the gold standard

28/10/2021

The EPO’s Enlarged Board of Appeal has today (28 October 2021) formally issued its written decision on case G1/21 on whether oral proceedings can be held by video conference without the parties’ consent. The EPO has published the written decision on its website.

In July this year the Enlarged Board issued a preliminary ‘order’ stating that oral proceedings before Boards of Appeal can be conducted by video conference without the parties’ consent during an emergency such as the Covid-19 pandemic. The written decision confirms this order and explains the reasoning behind it.

We will review the written decision and the Enlarged Board’s reasoning in more detail in the coming weeks. From our initial review, the Enlarged Board stated that oral proceedings conducted in person represents the ‘gold standard’ of oral proceedings. While it fulfils the basic requirements of being oral proceedings (they are ‘oral’ and they are ‘proceedings’), an oral proceedings held by video conference is suboptimal, at least for the time being and using current technology. Parties might reasonably prefer to attend oral proceedings in person and so there need to be serious reasons to justify holding oral proceedings by video conference against the parties’ wishes. The Enlarged Board found that the present pandemic was a sufficiently serious reason to justify oral proceedings by video conference without consent.

Our first impressions are as follows:

1. The decision is limited to oral proceedings before the Boards of Appeal while the pandemic lasts. It does not affect oral proceedings at first instance, including oral proceedings before the opposition division. The decision does not seem to prevent the EPO holding oral proceedings by video conference for first-instance opposition cases without the parties’ consent, even once the pandemic ends.
   
2. Video conference oral proceedings might still become the default for oral proceedings before the Boards of Appeal if, for example, the technology continues to improve.
   
3. The Boards of Appeal still have discretion to choose whether to hold oral proceedings by video conference without the parties’ consent. If the parties to an appeal make a sufficiently compelling case for postponement, the Board might be persuaded to postpone the oral proceedings. If you have any questions about the Enlarged Board decision or on oral proceedings more generally, please contact 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.