EBA decision in G1/21 (ViCo): "In-person proceedings should be the default"

The written decision of the Enlarged Board of Appeal (EBA) in G1/21 on the legality of video conferencing oral proceedings has been released. As previously reported, the EBA chose not to explicitly answer the referred question of the broader legality of mandatory ViCo oral proceedings. The EBA instead limited their order to addressing the situation arising from the COVID-19 pandemic. However, unlike the initial EPO press release (IPKat), the detailed reasoning of the EBA does provide a view on the appropriateness of continuing with mandatory ViCo oral proceedings post-pandemic, and goes so far as to state that in-person proceedings should be the default in the absence of a state of general emergency. The full decision can be read here. 

G1/21 Case catch-up

In order to avoid a large back-log of cases during the COVID-19 pandemic, the EPO began holding Board of Appeal oral proceedings by video conference (ViCo). The EPO went further by also laying the groundwork for the continued use of ViCo in Boards of Appeal oral proceedings post-pandemic, with the introduction of a new Rule of Procedure of the Boards of Appeal (RPBA), Article 15a (IPKat). Article 15a RPBA permits a Board of Appeal to hold oral proceedings by ViCo whenever "the Board considers it appropriate to do so". 

The EPO's swift move to mandatory ViCo oral proceedings was controversial to say the least. It was therefore unsurprising when news broke of a new referral to the EBA on the legality of the new provision. The referral stems from appeal T1807/15 of the opposition decision to maintain EP1609239 in amended form (IPKat). 

Munich

The referral to the EBA from the Board of Appeal asked if conducting oral proceedings by ViCo was compatible with the right to oral proceedings as enshrined in Article 116(1) EPC.  However, the EBA chose to narrow the referred question. First, given that the referring Board of Appeal's decision was taken under the restrictions imposed by the COVID-19 pandemic, the EBA reformulated the question such that it was directed only to situations arising from "a general emergency impairing the parties' possibilities to attend in-person oral proceedings". Second, the EBA limited the scope of the referral to appeal proceedings, given that the referring Board was dealing with an appeal case.  

ViCo oral proceedings are permitted but suboptimal

The view of the referring Board of Appeal was that the provisions of Article 116(1) EPC, which provides for the possibility of oral proceedings, should be read as limited to in-person proceedings. The EBA disagreed, noting the definition of "oral" in the OED as being merely "by the spoken word". Furthermore, the EBA found no reason to limit oral proceedings to the specific forms that were possible when the EPC was drafted. The EBA thus found no basis for limiting "oral proceedings" to in-person proceedings, noting that, "since the object and purpose of oral proceedings is to give parties an opportunity to plead their case orally, it is improbable that the legislator wished to rule out potential future formats which would allow them to do so" (r. 28).

The EBA acknowledged that ViCo oral proceedings had their limitations, but not that ViCo therefore fell below the threshold required by the right to be heard (Article 113 EPC). The EBA particularly rejected the argument that ViCo oral proceedings are unsuitable because it is not possible for parties to read the body language of the board members, noting that body language and facial expressions are visible in ViCo. The EBA concluded that ViCo oral proceedings are "suboptimal [...] but not to such a degree that a party's right to be heard or right to fair proceedings is seriously impaired" (The phrase "damned with faint praise" comes to mind). 

In contrast to the view of the EPO president, the EBA did not consider ViCo oral proceedings as equivalent to in-person proceedings. For the EBA, the problems with ViCo proceedings included the potential distraction of having to cope with the technology and less judicial transparency (r. 38, 39). As such, in-person oral proceedings should remain "the gold standard" (r. 44). In fact, the EBA went so far as to as to state that "in-person proceedings should be the default option" and should not be denied without good reason (r. 46). The EBA provided some examples of what these "good reasons" might be, and particular that they should "relate to limitations and impairments affecting the parties' ability to attend oral proceedings in person at the premises of the EPO", but not to  "administrative issues such as the availability of conference rooms...or intended efficiency gains" (r. 49). 

Final thoughts

The EBA therefore found that introduction of mandatory oral proceedings during the COVID-19 pandemic was justified, but provided little in the way of legal justification for mandatory ViCo proceedings post-pandemic. The full wording of the decision seems to reject the legality of a move to ViCo oral proceedings as a new norm post-pandemic. However, this view did not make it into the final order which applied only to cases of "general emergency impairing the parties' possibility to attend in-person oral proceedings". The EBA order was also restricted to the use of ViCo for appeal proceedings. However, the EBAs comments on the limitations of ViCo compared to in-person proceedings appear as applicable to examining and opposition division oral proceedings as to appeal proceedings. 

Where does the EBA decision therefore leave the implementation of Article 15a RPBA and its broader digital strategy? To this Kat, it seems likely that situations in which a Board of Appeal insists on ViCo oral proceedings without the consent of all parties will be rare post-pandemic. During the pandemic, objecting to ViCo proceedings when no in-person proceedings are possible can be used by parties as a strategy to delay proceedings. This will no longer be the case once all travel restrictions have been lifted. Post-pandemic, users of the EPO may therefore embrace the option for ViCo proceedings as the more efficient and cheaper option. In cases where in-person proceedings are preferred by the parties, the reasoning of G1/21 provides only limited grounds for a Board of Appeal to refuse parties the option of the in-person proceedings "gold standard". In view of this, how many Boards will choose to do so?

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

17 July 2021: EBA dodges the question in G1/21 (ViCo oral proceedings)

3 Sep 2021: Are parties still impaired from attending in-person proceedings? G1/21 (ViCo) applied by the Boards of Appeal (T 1197/18)