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EPO continues oral proceedings by videoconference in examination and opposition during pendency of referral G 1/21

March 2021

The EPO Boards of Appeal took the decision that from the start of 2021, all Boards of Appeal oral proceedings could be held by videoconference, even if the parties to the proceedings were not in agreement (ostensibly aping the position before Opposition and Examining Divisions).

This decision has been divisive since many believe that holding proceedings by video conference does not give either appellants or respondents the best chance of presenting their case.

On 12 March 2021, Technical Board of Appeal 3.5.02 in appeal case T1807/15 made a referral to the Enlarged Board of Appeal seeking to clarify whether, in view of Article 116(1) EPC, oral proceedings may be conducted by videoconference (VICO) without all parties’ consent. The referral concerns appeal proceedings, but also extends to oral proceedings by VICO before examining and opposition divisions.

The following question was referred to the Enlarged Board of Appeal (G 1/21):

“Is the conduct of oral proceedings in the form of a videoconference 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 videoconference?”

The Enlarged Board of Appeal will consider the referral on 28 May 2021.

The EPO has today stated that during pendency of the referral, oral proceedings before examining and opposition divisions will continue to be held by VICO as under current practice – that is, without requiring explicit agreement of the parties.  The statement from the EPO does not explicitly mention oral proceedings before the Boards of Appeal however.  It is therefore arguable that the EPO would consider a request for a stay of proceeding in light of the pending referral G 1/12.

This article was prepared by HGF Partner Dr Chris Moore. If you would like further advice on this or any other matter, please contact Chris. Alternatively, you can contact your usual HGF representative or visit our Contact page to get in touch with your nearest HGF office.

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