Keeping a digital poker face: Assessing witness credibility in the ViCo age (T 423/22)

The Board of Appeal in T 423/22 considered whether a witness's credibility can be adequately assessed when proceedings are conducted by video conference (ViCo). The Board of Appeal concluded that body language is only ever a small part of an assessment of witness credibility. ViCo was therefore found to be a perfectly sufficient format for witness testimony, even when the entire outcome of a case rested on the witness evidence. Importantly, the Board of Appeal also noted that it is the responsibility of the deciding division of the EPO to make a judgement about the witness's credibility. Thus it is up to the relevant EPO division to decide whether the use of ViCo permits an adequate assessment. 

The age of ViCo

The mandatory use of ViCo oral proceedings was introduced in response to the travel restrictions caused by the COVID-19 pandemic, which prevented most people from attending proceedings in-person at the EPO. During the pandemic, the EPO introduced a ViCo oral proceedings pilot program, whereby all opposition and examining division oral proceedings were to be held by ViCo. ViCo oral proceedings have persisted post-pandemic as a core component of the EPO's digital strategy. Following a decision from the EPO President, ViCo is now the default form of oral proceedings before the opposition and examination Divisions (IPKat). 

The EPO has also amended the rules of the EPC to explicitly allow the use of ViCo post-pandemic. Most significantly was the introduction of new Article 15a of the Rules of Procedure of the Boards of Appeal (RPBA), according to which Boards of Appeal have the discretion to hold proceedings by ViCo whenever they consider it appropriate to do so (IPKat). Rules 117 and 118 EPC were also amended to permit evidence in proceedings before the EPO to be taken by videoconference (OJ EPO 2020, A135)

Keeping a digital poker face

The Board of Appeal decision in T 423/22 related to the appeal of an opposition decision finding the patent (EP220209) invalid for prior use. Evidence of prior use was provided by witness testimony during ViCo oral proceedings at opposition. The witness was an employee of the Opponent company and the oral proceedings had been held by ViCo without the consent of the Patentee. The Patentee appealed the decision and requested that the witness testimony be reheard in-person. 

The Patentee in the case argued that the use of ViCo meant that they were not able to observe the witness's body language during the hearing. As such, it was argued, the Patentee had been deprived of the opportunity to objectively judge the witness's credibility, thus violating the Patentee's right to be heard (Article 113(1) EPC). What if, for example, the telling sign of a nervously shaking knee was being missed out of camera view? 

Keeping a poker face

For the Board of Appeal, however, hearing a witness by videoconference did not "substantially limit the interaction" between the opposition division, parties and the witness, as compared to hearing the witness in the courtroom (r. 2.1.2). In any case, reasoned the Board, it was up to the opposition division (OD) to make a judgement about the credibility of a witness. As such, the format of a witness's testimony could not influence a party's right to be heard. The Board of Appeal noted that the OD had found no issue with suitability of the ViCo format. 

The Board of Appeal also found that the use of ViCo will not generally have a significant impact on whether a witness's credibility can be adequately assessed. The Board of Appeal particularly dismissed any suggestion that telling body language that would have been visible in-person, might be missed in the ViCo format. On the contrary, the Board thought that telling facial reactions might be even more visible in the zoomed in format of speaker-view compared to the courtroom setting. According to the Board, even "[m]ovements of the body outside the camera image section, like trembling knees (if such a thing can be expected during a patent case), may cause movements of other, visible, parts of the body". 

The legality of ViCo without the parties' consent (G 1/21)

The Board of Appeal in this case also considered the impact of the EBA's decision in G 1/21 on the legality of holding oral proceedings by ViCo without the consent of all parties. In G 1/21, the EBA found that the use of ViCo during appeal hearings did not violate a party's right to be heard (Article 113 EPC), and thus mandatory ViCo proceedings were permitted during a state of general emergency such as the pandemic. However, significantly, the EBA also found that ViCo oral proceedings are inferior to in-person proceedings, and thus that in-person proceedings are the "gold-standard" and should be the default (IPKat).

A number of Board of Appeal decisions have now considered the implications of G 1/21 post-pandemic. The Boards of Appeal in both T 1158/20 and T 758/20 raised a number of eyebrows by choosing to "dynamically interpret" the EBA decision in G 1/21. According to the Boards of Appeal in these cases, in less than 2 years since the EBA's decision in G 1/21, ViCo technology has improved so much that it can now be considered equivalent to in-person proceedings. By contrast, the Board of Appeal in T 2432/19 found that the EBA's reasoning in G 1/21 continues to apply and that in-person proceedings should still be the default (IPKat). 

Given that G 1/21 related directly to appeal proceedings, there is still the open question of how applicable it is to opposition and examination division proceedings. In the present case, the Board of Appeal first found support in G 1/21 for its position that ViCo was an adequate format for witness hearings, given the EBA's reasoning that the use of ViCo did not impact a party's right to be heard (r. 2.3.3). The Board of Appeal further did not consider it necessary to address whether the use of ViCo for witness testimony at opposition could be used outside of the conditions of a pandemic, given that G 1/21 related to appeal proceedings, not opposition proceedings (r. 2.3.4). Finally, the Board of Appeal reiterated that the adequacy of the format for witness testimony was a question for the Opposition Division, not the parties (2.3.6). 

The Board of Appeal also dismissed the Patentee's argument that the fact that the witness was an employee of the Opponent should have been taken into account when deciding if testimony could be given by ViCo. For the Board of Appeal, "[t]he mere fact that the witness was an employee of the opponent did not necessarily cast doubts on the witness's reliability that were serious enough for a hearing by videoconference to be ruled out" (3.6). 

The Board of Appeal concluded that there was no reason to deviate from the OD's view that the evidence of prior use from the witness was sufficient to substantiate the lack of novelty of the claimed invention (see also IPKat). The appeal was thus dismissed. 

Final Thoughts

As always in discussions surrounding ViCo oral proceedings at the EPO, it is critical not to conflate the controversy surrounding the correct interpretation of G 1/21 and the implementation of ViCo, with the advantages or otherwise of ViCo. Nonetheless, the decision of the Board of Appeal in T 423/22 attempts to directly address some of the concerns that remain surrounding the inadequacies of ViCo compared to in-person proceedings. However, it is hard not to have sympathy with a party unable to question a witness in-person, where the validity of a patent rests entirely on this witness's evidence. The debate over ViCo continues. 

Further Reading

• EBA decision in G1/21 (ViCo): "In-person proceedings should be the default" (Nov 2021)
• EPO President puts ViCo in opposition and examination on a permanent footing (Nov 2022)
• Latest EPO user survey on ViCo oral proceedings (Nov 2022)
• BREAKING: In-person proceedings are still the "Gold Standard" - Boards of Appeal start to diverge on ViCo (T 2432/19) (May 2023)
• The free evaluation of evidence of prior use (T 0042/19) (May 2023)