Pandemic measures cease but ViCo Boards of Appeal oral proceedings continue

The EPO has announced the cessation of pandemic measures. The announcement (here) states that going forward it will now be at the discretion of individual Boards of Appeal to summon parties to and conduct oral proceedings either in person or by VICO. 

The EPO has also launched a user consultation on the implementation of Board of Appeal oral proceedings by videoconference (ViCo)Anyone can submit responses to the consultation here. The consultation form is brief, mostly consisting of multiple choice questions, with limited opportunity for free text comments or detailed feedback, giving the survey a perfunctory feel. The deadline for responding to the consultation is 31 March 2023

Legal background: ViCo oral proceedings

In 2021, the EPO introduced a new Rule of Procedure of the Boards of Appeal (RPBA), Article 15a, permitting a Board of Appeal to hold oral proceedings by ViCo whenever "the Board considers it appropriate to do so". The new rule sparked a referral to the EBA on the legality of the new provision, G 1/21 (IPKat). In the referral, the EBA only directly considered the legality of mandatory use of ViCo during "a general emergency impairing the parties' possibilities to attend in-person oral proceedings" (e.g. the COVID-19 pandemic) (IPKat). 

The EBA found that the mandatory use of ViCo during appeal hearings was permitted during a state of general emergency, as ViCo did not fall below the threshold required by the right to be heard (Article 113 EPC). However, the EBA's decision also included some pointed remarks on the limitations of ViCo, and went so far to say that in-person proceedings were the gold-standard and should be the default in the absence of a general state of emergency impairing the parties' ability to attend (IPKat). 

ViCo Kat

Since G 1/21, Boards of Appeal addressing the question of whether mandatory ViCo oral proceedings is justified, have thus far have continued to find that there is a state of general emergency impairing parties' possibilities to attend in-person oral proceedings (IPKat). However, anecdotal reports are that, whilst ViCo has been the default, Boards of Appeal have been generally willing to accept requests from parties for in-person proceedings. Parties report that a simple reference to the reasoning in G 1/21 that in-person proceedings are the gold standard is usually enough to persuade a Board of Appeal that the proceedings should be held in-person. The latest announcement states that now pandemic measures have ceased, parties may submit reasons to the Board of Appeal why they have a preference for a particular type of oral proceedings.

It is also worth noting that Opposition and Examining Division proceedings are another matter when it comes to ViCo (which was not directly considered in G 1/21, which only related to Boards of Appeal oral proceedings). Towards the end of last year, a decision from the President made ViCo the default format for all opposition and examining division oral proceedings from the beginning of 2023 (IPKat). In an obvious attempt to avoid a flood of appeals on non-substantive grounds, the President's decision also stated that a decision of the Examining Division or Opposition Division to hold proceedings by ViCo is not separately appealable. 

EPO consultation

The latest consultation on ViCo is minimal, to say the least. The questions relate to the efficiency of ViCo oral proceedings, and the clarity and availability of information made available by the EPO about ViCo oral proceedings. There is also a question on the implementation of ViCo oral proceedings, which simply asks; "How would you rate the implementation of oral proceedings by VICO?", but no opportunity has been provided to input free text comments on this topic. Even if there were an opportunity to provide comments, the EPO does not have a great track record of delving into the nuances of user responses (IPKat). 

It seems to PatKat that the EPO might not have put very much effort into this consultation (there is currently even a very visible typo on the "thank you for your submission" page). It is also notable that anyone can respond to the consultation as many times as they like, raising questions as to the reliability of any data generated. Given the brief nature of the questions and the survey format, can we expect any meaningful data to come out of this survey? 

Going forward it will be interesting to see how amenable Boards of Appeal will be to allowing parties the choice of oral proceedings format, and where the balance will fall when there is a disagreement between the parties. 

Further reading

Pandemic measures cease but ViCo Boards of Appeal oral proceedings continue Pandemic measures cease but ViCo Boards of Appeal oral proceedings continue Reviewed by Rose Hughes on Friday, January 27, 2023 Rating: 5


  1. As it provides very limited opportunities to comment upon a hand-picked (and very narrow) selection of topics related to VICO oral proceedings, it is clear that the user consultation has not been designed to produce meaningful results. However, the same could be said of prior user consultations that the EPO has conducted on this topic. It would therefore not surprise me if the EPO were to use the results of the consultation as a pretext to make further changes (which changes could already be at an advanced stage of planning).

    On a different note, the removal of coronavirus-related safety measures for in-person oral proceedings makes it clear that even the EPO has now effectively conceded that there is no longer "a state of general emergency" that might justify the imposition of the VICO format against the wishes of one or more parties to oral proceedings. This means that, because it does not require the consent of all of the parties to the VICO format, Article 15a RPBA is now clearly incompatible with the ruling in G1/21.

    It is good to hear that there is anecdotal evidence that the Boards are, by and large, accepting requests for in-person proceedings. However, it is still troubling that VICO remains the default and that parties need to specifically request in-person proceedings (as opposed to the Boards requesting the consent of all parties to the use of VICO). That is hardly in keeping with the ruling in G1/21, which made it clear that in-person ought to be the default format.

    On the other hand, the position for first instance proceedings is just laughably incompatible with the ruling in G1/21. Frankly, I find it amazing that the EPO has got away with blatantly thumbing its nose at the rule of law in this way for quite so long.

    It seems to me that the only reasonable (ie lawful) ways of resolving the current impasse would be either to amend Article 116 EPC at a Diplomatic Conference, or to restore the in-person format as the default for all oral proceedings (whether first or second instance). Sadly, I doubt that I am alone in concluding that there is precisely zero evidence that the EPO is considering either of these courses of action.

    It will be interesting to see how the Boards deal with appeals that include allegations that the wrong format was used for first instance proceedings that take place from now onwards. I wish I could say that I am confident that the Boards will point out the obvious incompatibility with the ruling in G1/21. Whilst this really ought to happen, and despite the (rather surprising!) conclusions of the FCC in Germany, it seems to me that independent-minded members of the Boards have become an endangered species.

  2. EPO’s user consultations have at best an alibi function. The upper management is brilliant at asking biased questions which have as sole function to support the decisions which are already taken when a “pilot” is started.

    As far as OP by ViCo before the boards are concerned as long as the discretion given to the boards in Art 15a(1) is not aligned on the reasons given in G 1/21 any consultation is useless and the result is known in advance.

    That the EPO is thumbing its nose at the rule of law is no surprise as the tail is wagging the dog. The AC will pass any idea from the president and the chair of the boards just at a finger’s snap.

    There is a mechanism to amend the EPC, Art 172, and the Implementing Rules, Art 164, whereby Art 164(2) puts strict limits to the AC, but neither the AC nor the upper management of the EPO or of the boards give a damn!

    During the OP of G 1/21 the president’s representatives did not hesitate in claiming that the EPC could be amended by secondary legislation. I fail to see the legal basis for such an allegation, but they now pretend that the “dynamic” interpretation of the EPC in G 1/21 has established facts.

    One thing is sure, with the original composition of the EBA in G 1/21, things would have been much worse. That G 1/21 only dealt with OP before the boards is a pure denial of the letter and the spirit of the EPC. But it was clearly the wish of the 10th floor.

    When seeing that Art 116 and R 115 and 116 make no difference between OP in first instance and before the boards, the present mandatory OP by ViCo before the first instance has no legal basis whatsoever.

    Be it in first instance or before the boards, the fact that the members of the deciding body do not have to sit together is a scandal on its own. Where is the legal basis for such a denial of collegiality in a deciding body of three members?


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