Enlarged Board postpones oral proceedings on compulsory video hearings

At the beginning of 2021, the European Patent Office and EPO Boards of Appeal changed their practice. Previously, the office could only conduct oral proceedings via video with the consent of both parties.

However, from January 2021, the office made it possible for video proceedings to go ahead even without the consent of both parties.

Enlarged Board postpones G 1/21

Today, the EBA was due to hear the long-awaited oral proceedings – albeit remotely – in the G 1/21 case. This was to answer the question, “Is the conduct of oral proceedings in the form of a video conference compatible with the right to oral proceedings as enshrined in Article 116(1) EPC if not all of the parties to the proceedings have given their consent to the conduct of oral proceedings in the form of a video conference?”

However, following several hours of deliberation, the EBA has postponed the full oral proceedings on video conferencing. This is due to appellant Rohde & Schwarz claiming the court had only forwarded on EPO president António Campinos’ comments two days before the hearing, as well as several related amicus curiae briefs.

Over 40 parties filed amicus curiae briefs in the lead-up to proceedings. This includes an alliance of seven well-known patent attorney firms, including Boehmert & Boehmert, Cohausz & Florack, Grünecker, Hoffmann Eitle, Maiwald and Vossius & Partner.

António Campinos

Comments from Campinos

In his comments, Campinos concludes, in brief, that: Article 116 of the EPC does not extend to stipulating the form of oral proceedings; oral proceedings via video conference meet the minimum requirements laid out in Article 116; and the question of which form the oral proceedings takes lies with the relevant department.

In today’s proceedings, Mihaly Ficsor, Tobias Irmscher and Heli Pihlajamaa appeared on behalf of the EPO president.

The appellant argued two days’ notice was not enough time to adequately respond to Campinos’ comments. They claimed this impacts their right to be heard, and violates Article 9 of the EPC.

As such, at around 15.00 CET, the EBA agreed to a postponement of proceedings until the beginning of July. Now, appellant Rohde & Schwarz have around one month to prepare further written submissions.

In announcing the decision, EBA chairman Fritz Blumer expressed the will of the court to deal with case G 1/21 in “a timely manner.”

Background to the appeal

The new video conferencing regulation is consistent with Article 15a of the Rules of Procedure of the Boards of Appeal (RPBA). Here, Article 15a confirms the original Boards of Appeal Committee (BOAC) decision from 11 December 2020. Namely, to go ahead with video hearings without the consent of both parties as necessary.

However, following an interlocutory decision on 12 March 2021 in case T 1807/15, the Technical Board of Appeal 3.5.02 referred the point on video hearings to the EBA. Originally, T 1807/15 dealt with EP 16 09 239, concerning the design and efficiency of an amplifier circuit.

Appellant Rohde & Schwarz opposed the EPO maintaining EP 239 in an amended form and sought opposition proceedings against Andrew AG. Following much reshuffling due to the COVID-19 pandemic, the Boards of Appeal ran proceedings via video on 8 February 2021. This was without the consent of either party.

But during the proceedings, opponent Rohde & Schwarz requested that “the question be referred to the EBA for decision as to whether oral proceedings under Article 116 EPC can be replaced by a video conference without the parties’ consent?”

The opponent argued that holding oral proceedings via video conference contravenes Articles 116 and 113 (1) of the European Patent Convention. Rohde & Schwarz then withdrew its auxiliary question, casting doubt over whether the EPO would pursue the referral. On 16 March, the EBA confirmed the appeal would go ahead. Now the parties must wait until July.

Removal for lack of impartiality

Before the proceedings even began, however, accusations of a lack of impartiality impacted the EBA’s composition. Under Article 24 (3) of the EPC, the opponents Rohde & Schwarz filed comments questioning the partiality – or lack thereof – of four board members. This included the EBA chairman, Carl Josefsson.

The opponents questioned the partiality of Carl Josefsson, given his role in implementing Article 15(a) of the RPBA. According to the submission, Josefsson has also publicly stated his support for video conferencing. The objection against two other members was based on their membership of the Presidium of the Boards of Appeal. A futher board member informed the EBA of their involvement in drafting of Article 15(a) RPBA.

As a result, the EBA suspended Josefsson and another member from the proceedings. However, the two remaining members could continue their participation.

Today, in another twist, chairman Fritz Blumer called an early break in proceedings to allow the panel to address further accusations of impartiality. However, in this instance the EBA rejected both accusations.

Patent attorneys present

Alice Findlay, of London firm Reddie & Grose, represents Andrew AG. But neither an attorney nor an in-house representative of Andrew AG was present at the hearing today.

At the hearing, Stephan Tatzel and Oliver Hassa of Isarpatent represented opponent Rohde & Schwarz. The Munich-based law firm only took over the case in April. Previously, Mitscherlich led the opposition proceedings. The Munich law firm is considered Rohde & Schwarz’s regular counsel.

Three EPO lawyers represented the president, António Campinos. (Co-author: Mathieu Klos)

Andrew AG
Reddie & Grose (London): Alice Findlay (patent attorney)

Rohde & Schwarz
Isarpatent (Munich): Stephan Tatzel, Oliver Hassa (both patent attorneys)
In-house (Munich) Thomas Kimpfbeck

European Patent Office (Munich)
Mihály Zoltán Ficsor (Principal Director Legal Affairs), Heli Pihlajamaa (director patent law), Tobias Irmscher (lawyer)

Enlarged Board of Appeal, European Patent Office, Munich
Fritz Blumer (chairman), Wim van der Eijk, Tamás Bokor, Evangelos Chatzikos, Gunnar Eliasson, Andrea Ritzka, Richard Arnold, Nicolas Michaleczek (registrar)

Update 02.06.2021: The Enlarged Board of Appeal has rescheduled proceedings for 2 July 2021.