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Right to be heard before the EPO: in person vs. videoconference

Updates on oral proceedings held at the European Patent Office 30 March 2021

From April 2020, in the midst of the COVID-19 pandemia, the EPO altered its approach with respect to oral proceedings held in person before the relevant EPO departments and switched to massive adoption of videoconferencing (VICO) for examining and oppositions oral proceedings.

In particular – in the case of opposition oral proceedings taking place on or after 4 January 2021 until the end of a pilot scheme on 15 September 2021 – VICO will be used by default without needing the agreement of parties involved. A similar approach is being adopted by the EPO Boards of Appeal.

Helding oral proceedings by VICO was thus introduced to ensure that, during the pandemia, the EPO properly continues to take decisions in examination and oppositions proceedings avoiding delay in access to justice.

Recently, a Technical Board of Appeal of the EPO referred – in an interlocutory decision of 12 March 2021 – this question to the Enlarged Board of Appeal: “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?”

It basically asks the Enlarged Board of Appeal to clarify if – in view of Article 116 EPC (“right to be heard before the involved department of the EPO”) – oral proceedings may be conducted by VICO without consent of all parties.

The referral concerns VICO in appeal proceedings and also extends to oral proceedings by VICO before examining and opposition divisions.

This referral will be handled under G1/21: the Enlarged Board of Appeal reacted very quickly, planning oral proceedings to be held by video conference (how much appropriate in this case!) on 28 May 2021 to discuss this matter. Faster than in any previous referral.

Pending referral G1/21, what about all the oral proceedings scheduled in the meantime? On this point, on 24 March 2021 António Campinos – President of the EPO – confirmed that, in the meanwhile, oral proceedings will continue to be held by videoconference without requiring explicit agreement of the parties. The decision states, “The President of the EPO has decided that in order to guarantee access to justice and ensure the functioning of the EPO, oral proceedings before examining and opposition divisions will continue to be held by videoconference…without requiring the agreement of the parties.

The President decision explicitly refers to pending referral G1/21 and to Article 116 EPC.

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