IP Cases & Articles

Is this the end of ViCo before the EPO without consent of all parties?

In the pending referral before the Enlarged Board of Appeal, G 1/21, there is posed an important question for all parties involved in oral proceedings before the EPO. Namely: 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?

Postponed G1/21 oral proceedings now set for 02 July 2021

Having previously been scheduled for 28 May 2021 this important referral before the Enlarged Board of Appeal will now take place on 02 July 2021.

The referring question stems from T 1807/15 where despite both parties objecting to the use of video conferencing (ViCo) for the appeal in question, the Board held the oral proceedings by ViCo. At the oral proceedings on 08 February 2021, the appellant specifically requested that a question be referred to the Enlarged Board of Appeal (EBA) on this matter and before dealing with the substantive issues of the case, the Board considered it reasonable to seek clarification from the EBA, noting that it was “to avoid any procedural violation”.

In 2020, oral proceedings were held by video conference only with consent of all parties. This was the EPO’s response to the coronavirus pandemic and is a change in practice that has generally been working well for those involved.

On 15 December 2020, however, there was a Communication uploaded to the EPO’s website noting that from 01 January 2021, the Boards of Appeal may “conduct oral proceedings by VICO even without the agreement of the parties concerned”. This was followed by the introduction of new Article 15a RPBA which came into effect on 01 April 2021 relating to oral proceedings by ViCo.

Similarly the EPO President announced on 10 November 2020 and 17 December 2020 that oral proceedings can be held before the opposition divisions and examining divisions respectively, without all parties’ consent.

Following a significant number of amicus briefs and a change in Chairman and one of the EBA members after objections of suspected partiality, the hearing for G 1/21 was due to be heard (ironically by Zoom) on 28 May 2021. Unfortunately, however, the hearing has been postponed following the appellant’s request for more time to consider the EPO President’s submissions on the referral. The EBA indicated that the oral proceedings will be rescheduled for June-July and so the wait continues for a decision on whether ViCo can continue without the consent of all parties.

If there are any questions on G 1/21 or the use of ViCo in EPO hearings, please contact us at mail@dyoung.com.

G1/21 decision

For more information on the decision please follow the link below.

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Guide to ViCo at the EPO

We have produced a guide drawing from our experience of ex parte and inter partes oral proceedings before the EPO by video conference to aid participants of such proceedings in what they might expect and how best to prepare.

Our “Client Checklist for ViCo” is included for clients attending a ViCo hearing.

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