‘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
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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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