We welcome the speed at which the Enlarged Board has convened oral proceedings in this reference and urge similar expedience in issuing a decision to minimise the period of uncertainty.
We are aware that concerns have been raised over an appearance of partiality of the Enlarged Board as constituted. CIPA strongly believes that the impartiality of the Enlarged Board is essential for the rule of law.
We note the detailed construction by the referring Board of the term “oral proceedings” in Article 116 EPC (point 5 of the referral). We agree with the Board’s recognition at 4.1.3 that “running videoconferences using a technology that generally functions properly is compatible with both the right to be heard and the right to a fair trial”. Neither the wording of Article 116 nor its intent would appear to preclude videoconferencing.
The referring Board identifies at 3.7 that there is a correlation between the appropriateness of videoconferencing, the right to be heard under Article 113 EPC and the issue of party consent. CIPA does not see a general requirement of party consent to the form of proceedings as long as it is compatible with both the right to be heard and the right to a fair trial. However, if the Enlarged Board decides that consent to the form of proceedings is relevant, or if a party specifically requests in-person proceedings, then we urge that reasons be required to indicate why videoconferencing in any particular case would not meet the conditions of the right to be heard or the right to a fair trial.
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Date Published: 13 May 2021
