The revival of in-person oral proceedings as the default format in post-pandemic times

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‘Oral proceedings’ by videoconference without the parties’ consent has been the uproar of the year; see this Blog here for some background information. Positions could hardly have been more irreconcilable. The Enlarged Board of Appeal had to step in to resolve the issue. It did so, in stages. The operative part of G 1/21 had been published already on 16 July 2021:

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.

But this obviously clarified things only to a very limited extent, i.e. (i) for proceedings before the Boards of Appeal; and (ii) for times of ‘general emergency’. It remained unclear what that meant for the first instance bodies of the EPO, and for non-pandemic times.

Meanwhile, the reasoned decision of the EBA has been published on 28 October 2021, accompanied by a press release.

The reasoning of the EBA is straight-forward.

Interpretation of article 116 epc

The EBA had no doubt that those involved in the legislative process leading to Art. 116 EPC 1973 had in-person oral proceedings in a courtroom in mind (¶ 26). However, that does not mean that ‘oral proceedings’ were meant to be limited to this particular format:

In the EBA’s view, it is improbable that the legislator wished to rule out potential future formats which would allow the parties to appropriately plead their case orally (¶ 28-29). Accordingly, the EBA holds (¶ 30):

[O]ral proceedings in the form of a videoconference are oral proceedings within the meaning of Article 116 EPC.

The EBA notes in passing that holding differently would have meant that oral proceedings by videoconference would take place in a legal vacuum, meaning that the provisions and practices relating to oral proceedings would not apply either (¶ 31). I understand that this is not only a forward-looking statement, but would consequently also have applied to videoconferences that had already taken place. Obviously, this would have resulted in a complete mess.

Is a videoconference equivalent to in-person oral proceedings and, if not,  is it a suitable format for conducting oral proceedings?

The equivalence of both formats had been postulated in various decisions of the President (see e.g. here, Art. 1(3)), and this alleged equivalence was much debated.

The EBA’s take on this is very clear (¶ 38):

[C]ommunicating via videoconference cannot, at least for the time being, be put on the same level as communicating in person.

Accordingly, both formats are not equivalent — even though the EBA avoided to bluntly say it that way but rather softpedalled it as «not fully equivalent» (¶ 44). In my view, future developments of the kind of Google’s Project Starline may indeed further narrow the gap between the two formats. But we are clearly not yet there.

But at the same token, the EBA held (¶ 40):

In combination with the written part of the proceedings [a videoconference] normally is sufficient to comply with the principles of fairness of proceedings and the right to be heard.

The EBA therefore comes to the Solomonic conclusion (¶ 43):

[T]he limitations currently inherent in the use of video technology can make it suboptimal as a format for oral proceedings, either objectively or in the perception of the participants, but normally not to such a degree that a party’s right to be heard or right to fair proceedings is seriously impaired.

The role of the parties’ consent

Here we are at the heart of the dispute: Can ‘oral proceedings’ by videoconference be imposed on a party, despite its shortcomings but in view of the EBA’s finding that they are normally okay in terms of the party’s right to be heard and the right to fair proceedings?

The EBA held in no uncertain terms (¶ 45):

[I]n-person hearings should be the default option. Parties can only be denied this option for good reasons.

In setting the stage, the EBA even refers to the in-person format as the ‘gold standard’ (¶ 45). Now, what are these «good reasons» for which a party may be denied the gold standard?

First, «a suitable, even if not equivalent, alternative» must be available (¶ 48). In view of the foregoing, a state-of-the art videoconference will normally be sufficient in this respect.

Secondly, «there must also be circumstances specific to the case that justify the decision not to hold the oral proceedings in person» (¶ 49). This cannot be emphasized enough: It is not (anymore) that a party has to establish why a videoconference is inappropriate in a specific case. It is rather the other way around. What is more, the «circumstances specific to the case» are very limited (¶ 49):

These circumstances should relate to limitations and impairments affecting the parties’ ability to attend oral proceedings in person at the premises of the EPO.

That’s it: A clear-cut criterion, not just an example of what else might come to mind as a «circumstance specific to the case». The EBA went even further and held that «administrative issues such as the availability of conference rooms and interpretation facilities or intented efficiency gains» (sic!) are irrelevant.

Thirdly, «the decision whether good reasons justify a deviation from the preference of a party to hold the oral proceedings in person must be a discretionary decision of the Board of Appeal summoning them to the oral proceedings» (¶ 50).

Finally, the EBA notes that the European Court of Human Rights apparently dealt similarly with the issue; see the ECHR’s Guidelines on Hearings by Videoconference (¶ 1-2).

Now, what does that mean for first instance proceedings?

The EPO had switched to ‘oral proceedings’ by videoconference as the default format in examination proceedings with decision of the President of 17 December 2020. Not as a pilot or during pandemic times only, but rather permanently. The current pilot for ‘oral proceedings’ by videoconference in opposition proceedings is coming to an end on 31 January 2021.

The reasons of the EBA are crystal-clear and in no way specific for ‘oral proceedings’ before the Boards of Appeal; Art. 116 EPC applies equally to first and second instance proceedings. Accordingly, there will have to be changes to how ‘oral proceedings’ are being conducted in first-instance proceedings: In non-pandemic times, in-person oral proceedings will have to be the default format again. Which I truly feel is good.

On the other hand, we have witnessed an extensive field test of videoconference ‘oral proceedings’ at the EPO during the pandemic. Many practitioners surely have appreciated the possibility of ‘oral proceedings’ by videoconference. Including me. This will no doubt spill over to non-pandemic times, i.e. many practitioners will happily choose the videoconference format for many ‘oral proceedings’. Voluntarily. Which, again, is good.

On a personal note, I feel that the EBA’s reasoning is so straight-forward and self-evident that what troubles me most in retrospect is that a referral to the EBA was necessary at all.

Reported by Martin WILMING

G 1/21 — Decision of 16 July 2021

Composition of the Enlarged Board:

Chairman: Fritz BLUMER
Member: Wim VAN DER EIJK
Tamás BOKOR
Richard ARNOLD
Evangelos CHATZIKOS
Gunnar ELIASSON
Andrea RITZKA


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G 1/21: State of play (continuously updated)

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As mentioned earlier on this Blog here, the following question has been referred to the Enlarged Board of Appeal (EBA), with interlocutory decision T 1807/15 of 12 March 2021:

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 docket to watch is EP 1 609 239.

I.  Composition of the EBA

In a communication of 1 April 2021 (to be published in the OJ), the EBA noted that the panel considering the referal G 1/21 will be composed as follows (L, legal member; T, technical member):

Mr. C. Josefsson SE L, Chairman
Mr. W. van der Eijk NL L, rapporteur
Mr. I. Beckedorf DE L
Mr. R. Arnold GB L, external
Mr. E. Chatzikos GR L, external
Mr. G. Eliasson SE T
Ms. A. Ritzka DE T

This composition has first been indicated with a communication of the EBA of 17 March 2021.

Isarpatent has taken over representation of the opponent / appellant with letter of 27 April 2021, suggesting that the referred question should be answered in the negative. In addition, C. Josefsson, A. Ritzka and G. Eliasson are objected for the appearance of bias (see above).

In several amicus curiae briefs, third party observations and by the appellant / opponent, some members of the panel had been put in question in view of the appearance of bias. With interlocutory decision of 17 May 2021, the EBA indeed changed the composition of the panel, as follows:

Mr. C. Josefsson
Mr. F. Blumer
SE
CH
L, Chairman
L, Chairman
Mr. W. van der Eijk NL L, rapporteur
Mr. I. Beckedorf
Mr. T. Bokor
DE
HU
L
L
Mr. R. Arnold GB L, external
Mr. E. Chatzikos GR L, external
Mr. G. Eliasson SE T
Ms. A. Ritzka DE T

The decision holds that the further objections to Ms. A. Ritzka and Mr. G. Eliasson (X and Y) were unfounded. Accordingly, they are not replaced.

II.  No stay of first instance proceedings

The President of the EPO has decided that

[…] during pendency of the referral oral proceedings before examining and opposition divisions will continue to be held by VICO as under current practice, i.e. without requiring explicit agreement of the parties.

See the EPO’s news release of 24 March 2021 for details. The official notice (for publication in the OJ) holds that this is meant 

[…] to guarantee access to justice and ensure the functioning of the EPO […].

With a communication of same day, the Boards of Appeal have informed the public that new Art. 15a of the RPBA was approved by the Administrative Council on 23 March 2021 (Art. 15a is accordingly in force since 1 April 2021). Further, the following was noted (emphasis added):

Between May 2020 and February 2021, oral proceedings were held by videoconference in over 380 appeal cases. Initially, oral proceedings were held by videoconference only if all parties agreed. Since 1 January 2021, they have also been conducted without the consent of the parties in appropriate cases. The BOAC and the Administrative Council have confirmed this practice in new Article 15a RPBA (see CA/5/21, points 5 and 7).

The notification is silent about whether or not this practice is being continued or not pending the referral to the EBA.

III.  Oral proceedings before the EBA

It is pretty clear that this referral is on the fast track.

It took the Registry of the EBA only 5 calendar days from the date of the referring decision (including a weekend) to issue summons to oral proceedings. They are scheduled to take place on 28 May 2021 at 09:00 hrs, by videoconference:

This is a very tight schedule. What is more, the EBA noted that

[…] a decision of the points of law referred to the Enlarged Board could be issued promptly

if the parties consider oral proceedings before the EBA not to be expedient and/or envisage not to attend the oral proceedings:

III.1  First ‘oral proceedings’ of 28 May 2021

The patentee / respondent has indicated with letter of 26 April 2021 that he will not attend the ‘oral proceedings’ before the EBA; see here.

With a communication of 14 May 2021, registration of members of the public to watch the live stream (via Zoom) has been opened.

waiting …

However, most of the hearing took place in camera. The interlocutory decision of the EBA on the recomposition of the panel had been challenged by the opponent / appellant with letter of 24 May 2021, inter alia for non-compliance with the Business Distribution of the EBA. As indicated in a notification of the EBA of 27 May 2021, the EBA discussed the substance of these requests while the public was excluded.

The EBA later announced its decision that all requests of the opponent / appellant raised with letter of 24 May 2021 were either inadmissible or refused (except for the one that aimed to discuss the issue on 28 May 2021, which is what obviously happened). The reasoned decision has been published on 29 June 2021.

In a public part of the hearing, the EBA dealt with yet another procedural objection. It appears that the opponent / appellant had onlyy been served with the EPO President’s comments two (2) days before the hearing. Even though the EPO President’s comments had been published on the EPO website on 28 April 2021, the opponent / appellant (rightly!) argued that parties cannot be expected to collect the relevant bits of information to comment on from such sources. (Haste makes waste.) Accordingly, the opponent / appellant was asked how much time he would need for considering / commenting on the EPO President’s comments. In accordance with the reply (1m), the EBA indicated that new summons will be issued for late June / early July in order to continue with assessment of the substance of the case as soon as possible.

In accordance with what has been held in the minutes of the vico ‘oral proceedings’, the appellant / opponent has submitted its observations on the President’s comments on 25 June 2021.

III.2  Second ‘oral proceedings’ of 2 July 2021

Summons for the second round of ‘oral proceedings’ have been issued for 2 July 2021.

IV.  Amicus curiae briefs

With a communication of 24 March 2021, third parties have been invited to submit written statements in accordance with Art. 10(1) of the Rules of Procedure of the Enlarged Board of Appeal, so-called amicus curiae briefs. They should be filed by 27 April 2021 with the Registry of the EBA, quoting case number G 1/21, and should be marked for the attention of Mr Nicolas Michaleczek (EBAamicuscuriae@epo.org).

The following list of amicus curiae briefs is continuously updated as they appear online. The color indicates whether the respective submission argues in favor (green) or against (red) ‘oral proceedings’ by videoconference without the consent of a party at least in non-pandemic times and/or before the Boards of Appeal. Unlabeled submissions are either not taking such a clear-cut position on the referred question, or relate to the appearance of bias only (epi (1) and (2)).

Amicus curiae

Date Submitted by
01 08 Apr 2021  VESPA
02 12 Apr 2021  epi (1)
03 13 Apr 2021  Bayer
04 15 Apr 2021  A. Schauinsland
05 16 Apr 2021  C. Menges
06 19 Apr 2021  Siemens
07 19 Apr 2021  BASF
08 20 Apr 2021  Med. for Europe
09 21 Apr 2021  Philips
10 21 Apr 2021  VPP
11 21 Apr 2021  APEB
12 22 Apr 2021  G-F & D
13 22 Apr 2021  VDA
14 23 Apr 2021  FEMIPI
15 23 Apr 2021  REPI
16 25 Apr 2021  BDPA
17 27. Apr 2021  PAkammer
18 26 Apr 2021  Plasseraud
19 26 Apr 2021  Roche
20 26 Apr 2021  Maiwald et al.
(EN tranlation)
21 26 Apr 2021  Laine IP
22 26 Apr 2021  epi (2)
23 (undated)  IP Ability
24 26 Apr 2021  J. Cockburn
25 27 Apr 2021  Saint-Gobain
26 27 Apr 2021  Murgitroyd
27 27 Apr 2021  CIPA
28 27 Apr 2021  Clariant
29 27 Apr 2021  M. D. Snodin
30 27 Apr 2021  J. Schmidtchen
31 27 Apr 2021  VCI/VDMA/ZVEI
32 27 Apr 2021  EPLIT
33 27 Apr 2021  Fresenius Kabi
34 27 Apr 2021  IPO
35 27 Apr 2021  C&R
36 27 Apr 2021  FICPI
37 27 Apr 2021  IP Federation
38 27 Apr 2021  F. P. Vatti
39 27 Apr 2021  IK-IP
40 27 Apr 2021  Ericsson
41 27 Apr 2021  C. Beckmann
42 27 Apr 2021  CNCPI
43 27 Apr 2021  epi (3)
44 27 Apr 2021  Philip Morris
45 27 Apr 2021  ReadyOppoOne
46 27 Apr 2021  Union
47 28 Apr 2021  Downing IP
48 12 May 2021  Meissner Bolte
49 12 May 2021  Ruhr IP
50 08 Jun 2021  Sabic

There is also a list of the amicus curiae briefs in a websection of the Boards of Appeal which is dedicated to G 1/21 here.

The President of the EPO has submitted comments under Art. 9 RPEBA on 27 April 2021.

V.  Third party observations

In addition to the amicus curiae briefs, there are also a lot of unsolicited / anonymous third party observations (TPO) in the online file wrapper.

The following list of TPOs is continuously updated as they appear online.

VI.  What to wish for, and what to expect

One may like videoconferencing or not. That is a matter of opinion, not a matter of fact or law. I have attended quite some ‘oral proceedings’ by videoconference over the last months, in examination, opposition and appeal proceedings. I did not object to any of those, and they had all been reasonably okay under the current pandemic circumstances. Accordingly, I am not fundamentally against oral proceedings by videoconference per se.

However, I am a big fan of in-person oral proceedings when it really matters; see e.g. this Blog here. In non-pandemic times, parties should have the right (again) to insist on oral proceedings in person if they wish so. This must not be only something that is occasionally allowed upon request at the mercy of a deciding body of the EPO in individual cases.

So, this is what I wish for. Not much, actually.

What is more, I feel in good company with the views taken by both epi and BusinessEurope:

epi is the professional body representing all European Patent Attorneys, with currently about 12’300 members. BusinessEurope speaks for all-sized enterprises in 35 European countries whose national business federations are its direct members. Accordingly, the Standing Advisory Committee before the EPO (SACEPO) is mainly staffed with representatives nominated by epi and BusinessEurope; see here. Thus, the users have been consulted, and they clearly and overwhelmingly expressed their views.

But what to expect?

Some say that the answer will surely be ‘Yes’ (contrary to my wish), inter alia in view of:

    • the explanatory notes to Art. 15a RPBA in BOAC/16/20 (N 20) and the subsequent approval by the Boards of Appeal Committee and the Administrative Council (see above);
    • the composition of the panel of the EBA; and
    • the notice in the summons that a decision could be issued ‘promptly’ if no oral proceedings were necessary (see above).

I am not so sure about it. But I’m a die-hard optimist.

Reported by Martin WILMING

T 1807/15 – 3.5.02

Interlocutory decision of 12 March 2021

Appellant / opponent:

Rohde & Schwarz GmbH & Co KG
Mühldorfstrasse 15
D-81671 München (DE)

Respondent / patentee:

Andrew AG
Bächliwis 2B
CH-8184 Bachenbülach / Zürich

Composition of the Board:

Chairman: Richard LORD
Member and rapporteur: Wilhelm UNGLER
Member and rapporteur: Fabian GIESEN

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VESPA’s amicus curiae statement re G 1/21

Reading time: 2 minutes

The Enlarged Board of Appeal of the European Patent Office will soon hear a case of fundamental importance for the parties’ right to be heard and the right to a fair trial. The question is how oral proceedings may be conducted in accordance with Art. 116 EPC. See this Blog here and the interlocutory decision T 1807/15 for details.

The referral is pending under G 1/21. ‘Oral proceedings’ (by videoconference, actually) are scheduled for 28 May 2021.

VESPA, the Swiss association of Swiss and European patent attorneys working in private practice, has filed a statement earlier today (see VESPA’s press release here), referring to a whole body of evidence-based research on the issue of videoconferencing in court proceedings. This research clearly shows that videoconferencing and in-person hearings are not equivalent, and the differences do affect the outcome.

Did the lawmaker tacitly accept or even intend that parties may be forced to settle with a second-best alternative to in-person oral proceedings? I could see that for a state of emergency (like a pandemic), to maintain access to justice. But not in normal times. No way.

HAVE YOUR SAY!

Any third party wishing to make a written statement can do so under Article 10(1) of the Rules of Procedure of the Enlarged Board of Appeal. Such statements should be filed by 27 April 2021 with the Registry of the Enlarged Board of Appeal, quoting case number G 1/21, and should be marked for the attention of Mr Nicolas Michaleczek (EBAamicuscuriae@epo.org); see the communication of 24 March 2021 for details.

Reported by Martin WILMING

AMICUS CURIAE BRIEF

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