EPO hearings by ViCo can continue without consent during the pandemic

The European Patent Office can continue to hold oral proceedings by videoconference without the consent of all parties.

In a much-anticipated ruling on the legality of the practice, the Enlarged Board of Appeal today provided a preliminary announcement in decision G1/21 that consent would not be required “during a general emergency”.

CIPA President Alicia Instone said: “We welcome this decision which will provide the clarity, in the short term, for applicants and their representatives.

“We appreciate the speed of delivery and that the immediate issue has been addressed. But we hope that, when the reasoned decision is issued, it will provide guidance into the matter post-pandemic. We fear that otherwise, we will see the broader issue revisited at this high level pretty quickly.

“Oral proceedings held by ViCo have been an essential lifeline for access to justice. The technology has come of age, has been shown to be fit for purpose, and has the added benefits of increased transparency, lower costs, reduced environmental impact and providing access to all regardless of physical mobility, personal circumstance and ability to travel.

“CIPA embraced this shift towards technology and last year launched a suite of training resources and events to ensure that the UK profession would retain and cement its world-leading position in both virtual and in-person proceedings.”

The Enlarged Board’s decision related to the new rule of procedure of the Boards of Appeal (RPBA), Article 15a, introduced earlier this year, which allowed oral proceedings by ViCo whenever “the Board considers it appropriate to do so”.

The referral questioned whether the new rule was compatible with the right to oral proceedings (Article 116(1) EPC), and the Enlarged Board concluded:

“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.”

CIPA, along with dozens of other interested parties including patent associations, multinational companies, and patent firms, submitted an amicus curae which can be read here. We argued that consent should not relate to the form of the proceedings as long as it is compatible with both the right to be heard and the right to a fair trial.

The EPO launched its ViCo pilot project in May last year and followed this with an announcement in November that oral proceedings by ViCo would become compulsory without requiring the consent of all parties.

One month later it was confirmed that the Boards of Appeal would follow suit.

The G1/21 referral had left the EPO’s position open to legal uncertainty. This is now solved at least until the end of the pandemic.

We have long argued that ViCo is inevitable in the long-term for all proceedings at the EPO and that, without a clear default to ViCo, there would be a risk that parties could seek to gain advantage by gaming the system. Read our response to the original User Consultation on 15a here.

We believe that today’s finding is a first step towards a vital virtual new era for the European patent system.

Date published: 16 July 2021

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