BREAKING: In-person proceedings are still the "Gold Standard" - Boards of Appeal start to diverge on ViCo (T 2432/19)

A Board of Appeal decision published today (T 2432/19) directly contradicts the previous decisions implementing G1/21. The Board of Appeal in T 2432/19 applies the clear direction from G1/21 that in-person proceedings should be the default in view of the inadequacies of current ViCo technology. In doing so, the Board of Appeal places itself in direct opposition to previous Boards of Appeal decisions having a more "dynamic" interpretation of G1/21. The decision in T 2432/19 also runs contrary to the view of EPO management, according to which ViCo oral proceedings are now to be considered the new "Gold Standard". 

ViCo oral proceedings catch-up

The mandatory use of ViCo oral proceedings, which was introduced in response to the travel restrictions caused by the COVID-19 pandemic, has now become a key component of the EPO's digital strategy. During the pandemic, the EPO also introduced new Article 15a of the Rules of Procedure of the Boards of Appeal (RPBA), under which Boards of Appeal have the discretion to hold proceedings by ViCo whenever they consider it appropriate to do so.

More lessons in legal fudge
from the EPO?

G1/21 considered the legality of mandatory ViCo oral proceedings under Article 15a RPBA. The EBA found that the mandatory use of ViCo was permissible during a state of general emergency impairing the parties' ability to attend in-person proceedings. However, it was also noted that in-person proceedings should nonetheless remain the "Gold-Standard" due to the inadequacies of ViCo technology (IPKat),

Following G1/21, the EPO was thus faced with the problem of reconciling their digital strategy with the clear stipulation from the EBA that in-person proceedings should remain the default absent a state of general emergency. Since the easing of the travel restrictions imposed by the pandemic, Boards of Appeal have had to find creative ways to reconcile the EPO's institutional cognitive dissonance on this issue. In a classic legal fudge, the Board of Appeals that have thus far implemented G1/21 have concluded that improvements to ViCo technology have effectively rendered G1/21 obsolete. According to these Boards, ViCo can now be considered equivalent to in-person proceedings (see for example T 1158/20 and T 0758/20) (IPKat).

Whilst the ViCo oral proceedings experience has undoubtedly improved, it is still a bit of a stretch to equate the quality of ViCo to that of in-person proceedings. It was therefore only a matter of time before a Board of Appeal disagreed with such a dynamic interpretation of G1/21.

T 2432/19 - ViCo and nappies

T 2432/19 related to the appeal of the Opposition Decision revoking EP2087873. The Patentee requested in their appeal that oral proceedings be held by ViCo. Contrary to the Patentee's request, the Board of Appeal summoned the parties to in-person oral proceedings in Haar. In its decision, the Board of Appeal considered the issue of G1/21 and its implementation. 

The Board of Appeal in T 2432/19 acknowledged that G1/21 was largely directed to the situation under a state of general emergency (such as the pandemic). However, the Board of Appeal considered the general reasoning provided in G1/21 as directly applicable to the general right for oral proceedings provided in the EPC. The Board of Appeal particularly found that the statements in G1/21 relating to the inadequacies of ViCo "established general criteria which need to be taken into account for the denial of a request for in-person oral proceedings", and that these criteria clearly applied "not only to a situation of general emergency, but are valid also in non-emergency times". The Board of Appeal's view in T 2432/19 is thus directly contrary to that taken in T 0758/20, in which the reasoning in G1/21 was found to be irrelevant to the use of ViCo outside a state of general emergency (IPKat). 

The Board of Appeal in T 2432/19 then proceeded to reference the clear direction from G1/21 that "in-person oral proceedings are the optimum format" (IPKat). In view of the finding in G1/21 that ViCo proceedings are sub-optimal, the Board of Appeal concluded that absent the narrowly defined circumstances of a state of general emergency it is "hardly justifiable" to deny parties the right to in-person oral proceedings" (r. 1.9.2):

"Due to the fact that videoconferences, at least according to current technology, can only provide a suboptimal form of communication, parties have a right to the optimum format for oral proceedings, i.e. in-person oral proceedings, that can only be denied under very limited conditions."

The Board of Appeal also disagreed with the finding of previous decisions that ViCo technology had improved sufficiently to render the reasoning in G1/21 obsolete: 

"the Board cannot recognise any improvements that can be said to provide the level of communication which is possible when all participants are physically present in the same room [...] the parties rely on the same kind of hardware and software as were available at the time of G 1/21, i.e. the picture and sound quality is basically the same. The Board cannot recognize any significant improvement in the oral or visual level of communication between the parties that would result, for example, in an increased "immediacy" to the level of oral proceedings in person. The technological developments in telecommunications which may bring about this level of communication are still awaited...The advantages of the gold standard thus remain as they were at the time of decision G 1/21.

The Board of Appeal thus concluded by directly rejecting the position that ViCo oral proceedings should be considered the new "Gold Standard". The Board of Appeal further noted that a Board of Appeal cannot be forced to hold oral proceedings by ViCo solely because this is requested by one of the parties. The Board of Appeal therefore proceeded to retain an in-person format for the proceedings in the case in question. 

Final thoughts

It is important not to conflate the controversy surrounding the correct interpretation of G1/21 with the question of the benefits or otherwise of ViCo. The question at issue in G1/21 was not whether Boards of Appeal may hold oral proceedings by ViCo, but whether Boards of Appeal may hold proceedings by ViCo without the consent of both parties. 

Instead, the decisions from the Boards of Appeal implementing G1/21 raise questions over the extent to which Boards of Appeal may use "dynamic interpretation" to ignore an unequivocal finding of the EBA. Given the explicit rejection of G1/21 in the earlier decisions, it is unsurprising that we now have a contrary decision in the form of T 2432/19. Where does the EPO and its new "Gold Standard" go from here? 

Further reading

Lessons in legal fudge from the EBA in Pepper (G3/19) (19 May 2020)

EBA decision in G1/21 (ViCo): "In-person proceedings should be the default"(1 Nov 2021)

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) (6 March 2023)

ViCo oral proceedings: True gold or fool's gold? (T 0758/20) (17 April 2023)