The COVID-19 pandemic and the associated travel restrictions have prevented, and continue to prevent, many parties and representatives from attending oral proceedings in person. To ensure timely access to justice, the Boards of Appeal introduced the option of conducting oral proceedings by videoconference in May 2020.

The practice of holding oral proceedings before the Boards of Appeal by videoconference is now also expressed in new Article 15a RPBA:

“Article 15a

Oral proceedings by videoconference

(1) The Board may decide to hold oral proceedings pursuant to Article 116 EPC by videoconference if the Board considers it appropriate to do so, either upon request of a party or of its own motion.

(2) Where oral proceedings are scheduled to be held on the premises of the European Patent Office, a party, representative or accompanying person may, upon request, be allowed to attend by videoconference.

(3) The Chair in the particular appeal and, with the agreement of that Chair, any other member of the Board in the particular appeal may participate in the oral proceedings by videoconference”.

Between May 2020 and February 2021, oral proceedings were held by videoconference in over 380 appeal cases. Initially, oral proceedings were held by videoconference only if all parties agreed. Since 1 January 2021, they have also been conducted without the consent of the parties in appropriate cases. The Boards of Appeal Committee (BOAC) and the Administrative Council have confirmed this practice in new Article 15a RPBA, which enters into force on 1 April 2021.

Whether oral proceedings may be held by videoconference without the explicit consent of the parties is currently the subject of a referral to the Enlarged Board of Appeal pending under G1/21. The Technical Board of Appeal of the EPO has asked the Enlarged Board of Appeal to clarify the issue of consent in view of Article 116(1) of the European Patent Convention. The referral relates to appeal proceedings, but would also extend to oral proceedings by videoconference before the examining and opposition divisions.

In the meantime, the President of the EPO has decided that pending the outcome of the referral, oral proceedings before the examining and opposition divisions will continue to be held by videoconference according to current practice, i.e. without requiring the explicit agreement of all parties.

Because of the COVID-19 pandemic, several hundred cases a month are now being heard remotely in the examination and opposition divisions. In 2020, before the introduction of videoconference oral proceedings by default, the pandemic was having a significant negative impact on legal certainty for parties and the public as almost none of the scheduled oral proceedings could take place. Against this background, avoiding a further delay to access to justice is a priority, the EPO says.

The EPO is awaiting the decision of the Enlarged Board of Appeal and it says it will immediately implement its findings in the conduct of oral proceedings before the examining and opposition divisions. To read the EPO’s press release on Article 15a, click here. To read the EPO’s press release on videoconference proceedings in examination and opposition, click here.