Today, the EPO Enlarged Board of Appeal has handed down its first order in the high-profile G 1/21 case regarding video conferencing. A press communiqué published on the EPO website confirms that compulsory video conferencing is admissible in appeal proceedings under the European Patent Convention "in a general emergency". However, parties await the final decision, and the EBA's full reasoning.
16 July 2021 by Amy Sandys
For several weeks, the European patent attorney community has eagerly awaited the decision in case G 1/21. Now, following much discussion, the EPO Enlarged Board of Appeal has published its first communication regarding the outcome of the proceedings. A press communiqué confirms that compulsory video conferencing does not contravene Article 116 of the EPC.
The answer partially responds to electronics firm Rohde & Schwarz, which in March 2021 referred the question “[can] oral proceedings under Article 116 EPC be replaced by a video conference without the parties’ consent?” to the Enlarged Board of Appeal.
However, the EBA postponed the first hearing date on 28 May 2021 during proceedings. This was due to 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. The EBA finally conducted the full proceedings two weeks ago, on Friday 2 July 2021.
Since early 2020, the EPO has conducted hearings at least partially via video conference, recently choosing Zoom as its favoured platform. This has caused some consternation between parties, with some reasoning that not conducting hearings in person constitutes a disadvantage. Indeed, in the lead-up to July’s proceedings, over 40 parties filed amicus curiae briefs in the lead-up to proceedings.
An alliance of seven well-known patent attorney firms, such as Boehmert & Boehmert, Cohausz & Florack, Grünecker, Hoffmann Eitle, Maiwald and Vossius & Partner, also voiced their opinions.
Today’s order circulated by the EPO reads, “During a general emergency impairing the parties’ possibilities to attend in-person oral proceedings at the EPO premises, the conduct of oral proceedings before the boards of appeal in the form of a videoconference is compatible with the EPC even if not all of the parties to the proceedings have given their consent to the conduct of oral proceedings in the form of a videoconference.”
Although the wording of the release is vague, lack of use of the word ‘pandemic’ is notable. The order suggests that other globally-impactful emergencies – perhaps a natural disaster or widespread transport disruption – could also constitute a ‘general emergency’. Furthermore, the G 1/21 order also considers that Europe could be likely to see future waves of the global COVID-19 pandemic.
However, the EBA should clarify this in due course.
According to sources, the EBA will not release its fully-reasoned decision for at least several weeks. However, parties should receive the full decision before the end of 2021. As noted by the EPO, the EBA has confined its order to oral proceedings held “during a period of general emergency impairing the parties’ possibilities to attend in-person oral proceedings at the EPO premises”.
The order also does not address: firstly, whether the EPO can hold video proceedings without party consent if the current period does not constitute a general emergency; secondly, whether first instance examination or opposition proceedings can be held via video without the consent of the parties. Observers eagerly await the coming reasoning.