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.
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.
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.
[…] 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.
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:
The patentee / respondent has indicated with letter of 26 April 2021 that he will not attend the ‘oral proceedings’ before the EBA; see here.
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.
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 ([email protected]).
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)).
|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.|
|21||26 Apr 2021||Laine IP|
|22||26 Apr 2021||epi (2)|
|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|
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.
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.
Third party observations
|Date / time of submission|
|01||21 March 2021, 20:42 hrs|
|02||27 March 2021, 15:58 hrs|
|03||30 March 2021, 10:21 hrs|
|04||09 April 2021, 16:02 hrs|
|05||13 April 2021, 20:07 hrs|
|06||19 April 2021, 09:40 hrs|
|07||19 April 2021, 11:59 hrs|
|08||27 April 2021, 19:26 hrs|
|09||27 April 2021, 22:41 hrs|
|10||28 April 2021, 10:45 hrs|
|11||29 April 2021, 10:04 hrs|
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.
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
D-81671 München (DE)
Respondent / patentee:
CH-8184 Bachenbülach / Zürich
Composition of the Board:
|Member and rapporteur:||Wilhelm UNGLER|
|Member and rapporteur:||Fabian GIESEN|
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