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EPO – Enlarged Board of Appeal asked to decide on the admissibility of conducting oral proceedings as videoconference without consent of the parties

Posted: March 17th, 2021

Technical Board of Appeal 3.5.02, decision of March 12, 2021, case T 1807/15 – Oral proceedings in form of a videoconference, reported by Dr. Rudolf Teschemacher, Bardehle Pagenberg

The referred question reads as follows:

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?

In the proceedings underlying the referral, oral proceedings had been appointed as videoconference (VICO) without the consent of the parties. During the oral proceedings, the opponent requested that the question be referred to the Enlarged Board of Appeal (EBA) whether oral proceedings under Article 116 EPC can be replaced by a videoconference without the parties’ consent. The Board decided to accede to this request in order to avoid any procedural violation. One month later, on March 8, 2021, the opponent withdrew the request for referral. Only 4 days thereafter the referring decision was issued. Considering that the parties have not withdrawn their objections to the holding of the oral proceedings, the Board holds that the referral is still required.

In the referring Board’s view, the fact that the EPC has not explicitly defined the format of oral proceedings does not necessarily mean that the term “oral proceedings” should be interpreted so broadly as to encompass videoconferences. According to the principles of interpretation of Articles 31 and 32 of the Vienna Convention on the Law of Treaties (Literal and systematic interpretation, historical interpretation), Article 116 EPC stipulates the right of the parties to be heard at in-person oral proceedings. This is confirmed by the use of the term ”appearing” before the EPO in Rule 116(2) EPC which can only be taken to mean physical presence in an actual room. As to the teleological interpretation, the Board refers to the opponent’s specific objections why presenting a case in a VICO does not offer the same opportunities as doing so at oral proceedings in presence of the parties and the Board.

With regard to the question whether there is a need to interpret the law in the light of present-day conditions, the Board points to the different roles of the courts and the legislator as defined in the EBA’s decision G 1/97 – Request with a view to revision/ETA and observes that a line must be drawn between judicial interpretation and “judicial legislation”. Restricting the parties’ fundamental procedural rights which are anchored in the Convention itself would appear to require legislative measures. Addressing relevant societal developments in the Contracting states, the decision mentions the situation in Germany, allowing in § 128a of the Code on Civil Procedure videoconferences, but not dispensing with the requirement that the court must sit in a courtroom, the parties being entitled to appear in the courtroom.

Since Article 15a of the Rules of Procedure of the Boards of Appeal (RPBA) as amended and envisaged to enter into force on April 1, 2021 has not yet been approved by the Administrative Council, the Board does not consider it appropriate to provide detailed comments on that provision. Notwithstanding this proviso, the Board gives some comments on the concept of dynamic interpretation as recently applied by the EBA in G 3/19 – Pepper for justifying a re-interpretation of Article 53 b) EPC in respect of the patentability of plants obtained by an essentially biological process. In this respect, the Board doubts whether Rule 12c (2) EPC, stipulating the process of amending the RPBA, is a valid legal basis for secondary legislation limiting the parties’ fundamental procedural rights laid down in the Convention.

In the consultation process on the introduction of Article 15a RPBA, many users had expressed the opinion that VICOs without the consent all parties should only be allowed as an emergency measure for coping with the Covid-19 pandemic, in particular with the travel restrictions imposed on parties and representatives. Proposals in this direction were not taken up and it may be that a more limited provision not giving the impression that VICOs are intended to become the “new normal” would have met with much greater acceptance.

A copy of the decision can be read here.

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