EBA dodges the question in G1/21 (ViCo oral proceedings)

The EPO yesterday announced the Enlarged Board of Appeal (EBA) decision in G1/21 (ViCo oral proceedings). The EPO press release can be read here

In what will be a disappointment to many, the EBA has limited its answer to the legality of mandatory oral proceedings during a period of general emergency. The question of whether new Article 15a of the Rules of Procedure of the Boards of Appeal is permitted under the EPC has therefore not been addressed. This new article permits Boards of Appeal to hold oral proceedings by ViCo whenever "the Board considers it appropriate to do so", i.e. even in the absence of a state of general emergency. 

The EBA plays its move

According to the press release, the EBA has decided as follows:

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.

The EBA thus appears to have avoided answering the question in G1/21 that most EPO users actually wanted it to answer. The decision thereby dodges the controversy (and any potential conflict with the EPO President...) but perpetuates legal uncertainty. There has been little disagreement that ViCo oral proceedings during the COVID-19 pandemic are necessary. The debate has chiefly consisted of whether there is justification for moving to a new norm of ViCo oral proceedings post-pandemic. As the CIPA president, Alicia Instone, commented in a statement it is hoped that "when the reasoned decision is issued, it will provide guidance into the matter post-pandemic. We fear that otherwise, we will see the broader issue revisited at this high level pretty quickly."

IPKat will report further once the EBA written decision has been released. 

Further reading

18 January 2021: The inexorable rise of EPO oral proceedings by video conference

9 Feb 2021: The legality of Board of Appeal oral proceedings by video conference has been referred to the EBA

16 March 2021: Board of Appeal in T1807/15 continues with ViCo oral proceedings referral

29 March 2021: Chairman and Enlarged Board criticised for lack of impartiality in ViCo oral proceedings referral (G1/21)

21 May 2021: EPO responds to accusations of perceived bias in G1/21 (ViCo oral proceedings)

28 May 2021: Oral proceedings in G1/21 (ViCo) rescheduled due to procedural technicality

6 July 2021: ViCo oral proceedings on the legality of ViCo oral proceedings - G1/21, The Sequel

EBA dodges the question in G1/21 (ViCo oral proceedings) EBA dodges the question in G1/21 (ViCo oral proceedings) Reviewed by Rose Hughes on Saturday, July 17, 2021 Rating: 5


  1. I get the feeling that if you were to ask the EBA "Can I have a drink, please?", they'd reply "No, you may not have a small measure of single malt whisky" and be happy that they'd answered the question appropriately. Meanwhile, in the real world...

  2. The EBA is getting the nag to rewrite the questions referred so that it can manage not to give a direct reply to the referred question or to come with a reply which is satisfying the higher management. We had this clearly in G 3/19, a bit less in G 2/19 and it is all over again in G 1/21.

    The question referred did not make any difference between first instance and BA, like Art 116 and R 115(1), but the order is only dealing with OP before the BA.
    Why on earth is the EBA incapable or unwilling to answer the referred question?

    It is slowly getting sickening and it is legitimate to ask whether the EBA is truly independent from the upper management.

    The same feeling arises when reading the communication of the chair of the BA in matters of composition of the EBA.
    Whilst the notion of legal judge is accepted, it can be set aside when it can adversely affects legal certainty (?) and may lead to procedural delays.
    It just needs for the composition of the EBA to be as close as possible to the composition listed in Art 2(1)(a) BDS in order to take valid decisions!
    One wonders where the chair of the EBA has obtained his law degree or who held its hand?

    Coming from people meant to protect the EPC it gives a fatal impression.

    It is high time to give the BA more than the perception of their independence, but a true independence!


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