Board of Appeal finds ViCo is now equivalent to in-person proceedings, and that G 1/21 "gold-standard" no longer applies (T 1158/20)
In G1/21 the Enlarged Board of Appeal (EBA) found that mandatory ViCo oral proceedings were justified in a state of general emergency impairing the parties' ability to attend in-person proceedings. However, in the absence of a state of general emergency, the EBA were unequivocal that in-person proceedings were the "gold-standard", and that in-person proceedings should therefore be the default. G 1/21 was decided against a backdrop of the EPO's digital strategy and the EPO's clear desire to move the majority of proceedings to a ViCo format (IPKat). How then would the Boards of Appeal navigate the legal reasoning of G 1/21 and pressure from EPO management?
So far, Boards of Appeal have avoided the question by continuing to find that the general state of emergency justifying ViCo oral proceedings continues to apply. T 1158/20 is the first decision to directly address the EBA reasoning that in-person proceedings should be the default, absent a state of general emergency. In a legal twist certain to raise a few eyebrows, the Board of Appeal in T 1158/20 found that ViCo technology has improved so much since G 1/21, that the EBA's stipulation that in-person proceedings should be the default no longer applies.
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| Patchy reasoning? |
G1/21: In-person proceedings are the gold standard
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.
The EBA found that the mandatory use of ViCo during appeal hearings was permitted during a state of general emergency, given that ViCo oral proceedings do not fall below the threshold required by the right to be heard (Article 113 EPC). The EBA's decision nonetheless included some pointed remarks on the limitations of ViCo. Crucially, the EBA observed that the standard of ViCo technology at the time had limitations. The EBA particularly noted that video technology "cannot yet be said to provide the level of communication which is possible when all participants are physically present in the same room". The EBA noted the technical difficulties associated with ViCo that may distract both the parties and the deciding body (r.38).
The EBA further noted that "[h]olding court hearings in person is also preferable from the point of view of the transparency of the justice system and its function in society. In-person hearings held at an appropriate location better reflect the importance of the exchange between a court and the parties seeking justice, before a final decision is taken".
EBA thus concluded that "All in all [...] the limitations currently inherent in the use of video technology can make it suboptimal as a format for oral proceedings, either objectively or in the perception of the participants [...] a hearing in person is the optimum format or, to use a term well known in the field of European patent law, it is the gold standard. "
Since G 1/21, Boards of Appeal addressing the question of whether mandatory ViCo oral proceedings is justified, have found that there is a continued state of general emergency impairing parties' possibilities to attend in-person oral proceedings (IPKat). Anecdotally, Boards of Appeal have also generally been willing to accept requests from parties for in-person proceedings based on a simple reference to the reasoning in G 1/21 that in-person proceedings are the gold standard.
However, the EPO recently updated its guidance with respect to the pandemic, on the basis that the state of general emergency was no longer in effect (IPKat). This acknowledgement raised questions as to the ongoing applicability of G 1/21. Given the reasoning in G 1/21 that in-person proceedings should be the default in the absence of a state of general emergency, how could the EPO justify the ongoing use of ViCo without the consent of all parties?
Rejecting G 1/21
The decision in T 1158/20 is the first decision from the Boards of Appeal to consider the implications of G 1/21 absent a state of general emergency impairing parties' ability to attend in-person proceedings. The appeal was filed by the opponent following the Opposition Division decision to uphold the patent (EP2533655) as novel and inventive. The Board of Appeal in the case decided of its own motion to hold the oral proceedings by videoconference pursuant to Article 15a(1) RPBA 2020.
The Board of Appeal acknowledged that there were no longer travel restrictions barring the parties from attending proceedings in-person (r. 1.3.2), but noted that this did not bar the Board of Appeal from exercising their discretion to hold proceedings by ViCo according to Article 15a(1) RPBA 2020. The Board of Appeal also considered the ongoing infection risk of COVID-19 as sufficient justification for holding the proceedings in-person.
The Board of Appeal then went on to directly address the reasoning in G 1/21 that in-person proceedings should be the default (r. 1.4.4). The Board of Appeal concluded that ViCo technology had improved so much since G1/21 that the concerns raised in G1/21 over the quality of ViCo proceedings could now be disregarded:
"[G1/21] was issued when the boards had had little experience with the software tools used for videoconferencing [...] Since then, the situation has changed, and the boards but also the parties have had extensive experience with videoconferences and the tools involved. The technical requirements were met on the board's side but also on the side of the representatives to allow for stable videoconferences with high-quality picture and sound such that holding oral proceedings by videoconference is no longer as far from the gold standard as it was when decision G 1/21 was taken.
On the contrary, in the board's view, nowadays an oral proceedings held by videoconference is often equivalent to a hearing in person."
The Board of Appeal thus concluded that oral proceedings by videoconference can now be considered equivalent to in-person proceedings.
Final thoughts
The Board of Appeal provides no evidence to support its decision that ViCo oral proceedings can be considered equivalent to in-person proceedings. Similarly, the Enlarged Board of Appeal provided no evidence for the contrary view in G 1/21. EPO user consultations on the ViCo oral proceedings demonstrated that users are broadly in favour of oral proceedings. However, the consultations did not directly address the question of whether ViCo oral proceedings are now of such a high quality that they can be considered equivalent to in-person proceedings (IPKat). On the contrary, the latest survey highlighted that there are still significant minority of users who have found ViCo proceedings "poor" or "very poor" (IPKat). The EPO therefore finds itself in a legal quandary, whereby one of the most legal controversial issues of recent years is decided based on a reasoning that has not yet been supported by facts on either side. In this context, it may only take one Board of Appeal to disagree with T 1158/20 for there to be another referral to the Enlarged Board of Appeal on the issue.
Further reading
- The inexorable rise of EPO oral proceedings by video conference (18 Jan 2021)
- The legality of Board of Appeal oral proceedings by video conference has been referred to the EBA (9 Feb 2021)
- Board of Appeal in T1807/15 continues with ViCo oral proceedings referral (16 March 2021)
- Chairman and Enlarged Board criticised for lack of impartiality in ViCo oral proceedings referral (G1/21) (29 March 2021)
- EPO responds to accusations of perceived bias in G1/21 (ViCo oral proceedings) (21 May 2021)
- Oral proceedings in G1/21 (ViCo) rescheduled due to procedural technicality (28 May 2021)
- ViCo oral proceedings on the legality of ViCo oral proceedings - G1/21, The Sequel (6 July 2021)
- EBA dodges the question in G1/21 (ViCo oral proceedings) (17 July 2021)
- Are parties still impaired from attending in-person proceedings? G1/21 (ViCo) applied by the Boards of Appeal (T 1197/18) (3 Sep 2021)
- EBA decision in G1/21 (ViCo): "In-person proceedings should be the default" (1 Nov 2021)
- EPO user survey: ViCo oral proceedings continue (to divide opinion) (7 Dec 2021)
- Applying G1/21 (ViCo oral proceedings): The real test is yet to come (23 Feb 2022)
- ViCo oral proceedings: Waiting for the end of the general emergency (T 2791/19)
- Latest EPO user survey on ViCo oral proceedings (18 Nov 2022)
- EPO President puts ViCo in opposition and examination on a permanent footing (24 Nov 2022)
- Pandemic measures cease but ViCo Boards of Appeal oral proceedings continue
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Posts
While we may all agree that the technical conditions for ViCos have somewhat improved during the last years, the Board seems not to acknowledge the whole bunch of "non-technical" issues related with ViCos, e.g. loss of body language, not being able to concentrate on a larger number of different tiles on a screen, overall concentration issues in staring at a screen for hours, nevertheless the risk of technical issues possibly leading to disadvantages for parties, etc...
ReplyDeleteOf course a Board will not really suffer from these issues, as they do not have any economic interest in the outcome of the proceedings. Coming to a decision is without any doubt easily possible in a ViCo.
However, a party fighting for (or against) a patent has to have the right to be represented in oral proceedings as best as possible and the "gold standard" for this was, is and will remain in person hearings.
Therefore, especially in opposition proceedings, ViCos should only be conducted, if all parties agree. In my view it can not be part of the discretion of the Board to decide about the format of the hearing, as frankly said, they have no clue, how people feel "on the other side of the table (screen)" ...
I fear that discussion of this decision is going to turn into another fight between factions with differing views on the acceptability of ViCo.
ReplyDeleteHowever, regardless of one's stance on ViCo, there is a bigger issue at stake here. What is at stake is none other than the Rule of Law at the EPO.
It is established in the Case Law and practice of the Boards that a referral to the EBA *must* be made in cases where the Board considers it necessary to deviate from an earlier decision of the Enlarged Board of Appeal. And yet, in this case, the Board at hand has taken it upon itself merely to declare that the reasoning in G 1/21 no longer applies, so that no further referral is necessary.
To be perfectly frank: this is an outrage, regardless of one's views on the use of ViCo. And, what's worse, there seems to be no recourse for users of the system against Boards going rogue like this, except in the very limited circumstances foreseen in the Petition procedure.
I can only agree that the grounds for Petitions for Review are too limited.
DeleteIn this regard, relevant provisions of the RPBA are Articles 21 and 23.
RPBA Article 21
Deviation from an earlier decision or opinion of the Enlarged Board of Appeal
Should a Board consider it necessary to deviate from an interpretation or explanation of the Convention contained in an earlier decision or opinion of the Enlarged Board of Appeal according to Article 112, paragraph 1, EPC, the question shall be referred to the Enlarged Board of Appeal.
RPBA Article 23
Binding nature of the Rules of Procedure
These Rules of Procedure shall be binding upon the Boards of Appeal, provided that they do not lead to a situation which would be incompatible with the spirit and purpose of the Convention.
By deviating from the interpretation in G1/21 without referring questions to the EBA, the Board in T 1158/20 seems to have breached both of these provisions. It is therefore astonishing to think that, on its own, this does not provide grounds for a Petition.
Perhaps the Board was canny in asking the representative of the appellant to confirm that "he had no objections based on the right to be heard" (point 1.4.5 of the Reasons for the Decision). This is because the Board's failure to refer questions to the EBA could, on one view, be interpreted at a violation of Art 113 EPC.
@Proof: it is interesting to note that the Minutes only indicate that the parties "confirmed the proper functioning of the videoconferencing technology during the oral proceedings", and do not say anything about observation of the right to be heard. My cynical side therefore wonders whether point 1.4.5 of the Reasons for the Decision is entirely accurate. However, even if it is not, the apparent failure of the Appellant to object under Rule 106 to the format of the hearing would probably doom any Petition to failure on formal grounds.
DeleteCan we therefore look forward to Technical Boards in other areas deciding to arbitrarily set aside decisions of the Enlarged Board? For starters, I wonder if any Board might be so bold as to declare that G 3/19 is no longer applicable and revert to the position under G 2/12 and G 2/13.
ReplyDeleteComment part 1
ReplyDeleteT 1158/20 might illustrate a new line of thinking within the boards, but another recently published decision also goes in the same direction: T 1624/20.
In both decisions the boards refer to Art 15a(1) RPBA20 giving them the discretion of holding OP by ViCo irrespective of what has been said in G 1/21.
Those decisions show that it has become a necessity to align the wording of Art 15a(1) RPBA20 to the reasons given in G 1/21. Another possibility could be to define how, in the framework of G 1/21, the discretion could be exercised in a reasonable and reliable way for parties.
It has become a lottery whether OP before the boards are held in-person or by ViCo.
In T 1158/20 and in T 1624/20, the boards seem to have added a new criterion to be justified by the party requiring OP by ViCo: the requesting party has to show why an OP by ViCo would not be “appropriate” in the actual case. Whilst the term “appropriate” is to be found in four places in G 1/21, cf. reasons 19, 37, 39 and 43, it is nowhere to be found in reasons 48 and 49 of G 1/21.
In reasons 48, one reads “If in a particular case a ViCo is not suitable, the OP will need to be held in person”. The EBA did not define in general when an OP by ViCo is not suitable. It simply added that “In the case underlying the referral, the Board expressed the view that the reasons brought forward why a ViCo would not be suitable for this particular case were not convincing”.
In reasons 49, the EBA held that “there must also be circumstances specific to the case that justify the decision not to hold the OP in person”. It then added that “These circumstances should relate to limitations and impairments affecting the parties’ ability to attend OP in person at the premises of the EPO”.
G 1/21 established a double condition for OP to be held by ViCo. The parties should be impaired in coming to the premises of the EPO and only then the case should be suitable for holding the OP by ViCo. The EBA never said that the EPO or the boards can have their own medical criteria when deciding to hold OP by ViCo.
In reasons 45 of G 1/21, the EBA held that the “gold standard” for OP before the boards is OP in person and not OP by ViCo. It is only after having established this fact, that the EBA decided under which circumstances OP could be held by ViCo against the wish of the parties.
In both T 1158/20 and in T 1624/20, it is clear that parties were not imparted in coming to the premises of the EPO. There were thus no reasons for not holding OP in person.
That parties are getting better acquainted with OP by ViCo is not a reason to claim that OP by ViCo are equivalent to OP in person, or in other words to ignore the gold standard established in G 1/21.
It is for parties to be given the choice of the form of the OP. If all parties agree to OP by ViCo there is no problem with it. If one party wants a mixed mode OP or if both parties request OP in person, it is not for a deciding body of the EPO to ignore those requests and quash them for reasons of “discretion”. This is not exercising discretion, but acting arbitrarily and therefore not acceptable.
Comment part 2
ReplyDeleteIt is bordering on bad faith, when in T 1158/20, the board claims that it was correct in T 996/20 to hold the OP in person on 02.11.2022 and it was also correct to deny OP in person on 27.11.2022 as in both cases it was a discretionary decision. The board claims that it had a different composition in those cases. The problem is that in both cases the same chairman and rapporteur were acting and only the legal member was different.
In T 1624/20, I would allow myself to claim that the board wanted primarily to protect itself. The same manifestly also applies for T 1158/20, whereby the aspect of convenience for the board could also have played a role as in one case it accepted OP in person and in the other case it refused OP in person. The COVID-19 situation has been steadily improving and it is difficult to justify not holding OP in person at the end of November, but at the beginning of the same month.
In T 2341/16, commented on another blog, OP scheduled for 20.05.2022 were cancelled after the announcement of the applicant that he would not be present at the PO. Prior to this announcement the BA refused to hold an OP by ViCo and applied the gold standard in matters of OP as foreseen in G 1/21.
In T 1708/19, commented on another blog, OP took place on 30.06.2022. End of June was just the period in which the board considered in T 2791/19 that the infection rate has increased drastically. This did not withhold the board in T 1708/19, which must also have been aware, should it actually have been the case, of the increasing number of infections, to hold OP in person.
In T 2791/19, commented on another blog, the board refused OP in person and held OP by ViCo on 26.07.2022. It is interesting to note that in T 2791/19 it was again the same chair and rapporteur than in T 1158/20 and T 996/20.
I leave any conclusions about those coincidences to the readership.
The EBA has not indicated any circumstance in which the “gold-standard” can be dispensed with once the conditions of the pandemic and the impairment of travel is not any longer present.
It is more than doubtful that the discretion of the boards goes as far as to decide by themselves when there is a risk of contamination or not by the COVID-19 virus. As long as the EBA has not done so, it is not for a board to decide, most probably for its own convenience, to hold or not OP in person in the absence of any impairment as to travel or access for instance to the Isar building of the EPO.
The EPO premises might benefit from a statute of ex-territoriality, but they are not on another planet. It can thus be expected that they conform to the COVID regulations valid for the places in which the EPO has buildings.
I would allow myself in stating that the present boards can be considered to have had a “dynamic interpretation” of what is said in G 1/21. I would in any case need more reasons to justify this attitude and not simply coming up with the “discretion” given in Art 15a(1) RPBA20.
One question remains unanswered: what is the legal basis allowing the members of a board not to sit together when deciding on the fate of an application or of a patent. cf. Art 15a(3) RPBA20.
The same applies mutatis mutandis to deciding bodies in first instance, in which OP can only be held in form of a ViCo. In view of the wording of Art 116, which does not make any difference between OP before the first instance and the boards, the legal basis for mandatory OP by ViCo appears also to be missing.
The only mechanism known to amend the EPC is Art 172. Art 164(2) puts strict limits to amendments of the Implementing Rules by the AC. The EPC cannot be amended by secondary legislation.
https://www.epo.org/law-practice/case-law-appeals/recent/t201624fu1.html
"One question remains unanswered: what is the legal basis allowing the members of a board not to sit together when deciding on the fate of an application or of a patent. cf. Art 15a(3) RPBA20."
DeleteThis to me is the key issue - setting aside all the other difficulties of body language and non-verbal communication between the parties and the board that are all lost in VC, frankly I don't believe that they engage with the subject matter in the same way anymore. They are going through the motions.
I wonder if this is yet another all-too-predictable symptom of the "reform" of the Boards of Appeal.
ReplyDeleteAs soon as membership of the Boards became subject to reappointment, and that reappointment became subject to meeting (non-public) performance criteria, it was self-evident to even the most naive and optimistic observer that this could turn into a tool to "encourage" Boards to issue the "right" decisions in order to please the EPO management. This has been all too evident in numerous other TBA and EBA decisions in recent years.
When it comes to judicial "independence", what's good for Viktor Orbán is good for the EPO management, it seems.
I'll bet the 'fors' and 'againsts' regarding ViCo are strongly correlated with living in Germany where attendance at in-person hearings is convenient and living outside Germany where attendance at in-person hearings is not convenient.
ReplyDeletePersonally I'm all for ViCo hearings, and I should imagine 99% of my clients will be, in view of the significantly reduced costs and disruption.
Your point of view is to a certain extent understandable, but it has to be the decision of the parties in which form OP are held.
DeleteIf your client is not prepared to pay for a trip to Munich, fair enough, but it is not correct for you to impose this view on the others parties and for a board to decide in a discretionary manner in which form the OP has to be held.
DeleteThe problem is more general and lies in the fact that the RPBA20 have given a great deal of discretion to the boards. Some boards use it with precaution, some literally abuse it. There is no mechanism insuring that the boards exercise their discretion in a correct, reasonable and predictable way.
From a procedural point of view, going to appeal has become a lottery.
Depending on where a file ends in appeal, form of OP, deletion, and combination of claims or more or less strict application of Art 13 (1 and 2) RPBA20 are purely depending of the whim of the board.
Substantial aspects are not immune either.
Some boards deal with the absence of a measurement method as a clarity problem which can be evacuated under G 3/14, whilst other take the bother and look into the problem.
A similar problem occurs when a board has the nerve to claim that no evidence is necessary to prove common general knowledge know to a member of the board. It is enough by itself! the board members are holding "the truth". Try to do this as a party. The board will promptly bring you on track!
It seems that the 28 TBA are evolving into small baronies that are not interested in what is happening in the board next door. We can hear the chair claiming “my board, my castle”.
The chair of the boards does not seem interested in what is going on in the various boards as long as the production figures are increasing. In this respect he is on a par with the present and previous tenant of the 10th floor.
The whole system of the BA at the EPO has to be reviewed and the boards have to become truly independent of the management of the EPO.
The balance of probabilities is such that it can be concluded that the board are only independent by name and appearance.
Independence is, alas, not only a question of appearance.
@anon 15:56 - "but it has to be the decision of the parties in which form OP are held." is not established as correct - it's exactly the issue that's being debated.
DeleteAnd given that OP typically only involves two parties, it's foreseeable that consensus will often not been reached, particularly where one party foresees some tactical advantage over the other party by requesting OP in-person. In which circumstances, what happens then when the parties can't decide? Can the board exercise discretion then? If not, then perhaps just having a blanket decision on how OP will be conducted is better.
There may be a correlation between location and enthusiasm for in person OPs, but this Brit very much wants a return to in-person proceedings, particularly for oppositions and opposition appeals!
Delete@anon 16:24
ReplyDeleteIf one party wants OP by ViCo and the other OP in person, the OP should be held in mixed mode. Where is the difficulty? Each party has the form it wishes. Why should the board have any discretion left?
That Business Europe does not like mixed mode OP is its own problem, not the problem of all other parties.
If both parties agree on OP by ViCo or on OP in person, the board should not have any discretion in deciding the form of the OP.
It is not for the board to arbitrarily impose to the parties a given form of OP just because it thinks that it has the “discretion” to decide on the form of OP.
By claiming it has the discretion to decide the form of OP, one could even say that the board shows some prejudice for or against a party or even both parties.
Convenience of the board has nothing to do when deciding the form of OP.
An objection under R 106 will most probably be dismissed, but one day the EBA will have to come with something more convincing than to say that the parties having been heard about the form of the OP (or the non-admissibility of evidence or requests), everything is OK.
After all the parties know better than the boards what is good for them.
It is very presumptuous for a board (or the president of the office) to know what is best for the parties.
It is a good tradition of judicial self-restraint not to decide on contested legal issues which are not relevant to the outcome of the case. The Board in T 1158/20 not only neglected this principle, they also presumed that the EBA would decide the question answered in G 1/21 differently under allegedly changed circumstances. This seems to be in conflict with the binding force of the decisions of the EBA as laid down in the Rules of Procedure which reserves the competence to the EBA to decide whether or not changed circumstances justify to deviate from its previous position.
ReplyDeleteThe root of the problem is that with the “reform” of the boards any re-appointment at the boards is subjected to delivering a given "performance".
ReplyDeleteThe criteria defining the requested performance have never been made public. On its own this is a disgrace.
It is clear that the prevalent criteria is, like in first instance, the achievement of the target given to each board.
The production target can be derived directly and unambiguously from the list of cases published by each board at the beginning of the year.
In any public message, the chair of the boards is emphasising the constant production increase of the boards.
It is to be suspected that a new criteria has been added: a good tolerance in bowing to the desiderata of the head of the EPO. It is otherwise difficult to explain reasonably why a board needs to decide by itself that the reasons in G 1/21 have become obsolete. Other writers have clearly shown that the board in T 1158/20 was not empowered to do so.
It is well known that the chair of the boards was full in line with the head of the EPO in matters of OP by ViCo and was directly involved in the setting up of Art 15a. His position was so abundantly clear that it needed other members from the boards to decide that the chair of the boards was prejudiced and was to be replaced by another legal member in G 1/21.
The second member directly involved in the discussions relating to Art 15a was cleverer. I gave up by himself. But on the other hand he came up with the notion of “dynamic interpretation” in G 3/19.
There were two other members in the original composition, but it was difficult to exactly ascertain their involvement in the preparation of Art 15a so they were left in the composition of the EBA in G 1/21. There were however know to be favourable to OP by ViCo at the boards. The outcome of G 1/21 might have been different if they had been replaced as well.
It is actually high-time to reform the boards of appeal in order to make them truly independent and not allow that members of the BA can be members of the EBA. For a long time the situation was tolerable, presently it is not any longer the case.