One of the fundamental principles of the European Patent Convention is the “right to be heard”. This means that any party to proceedings before the European Patent Office has the right to an oral hearing before any decision is taken which would adversely affect them.
Historically, oral hearings, usually termed “oral proceedings”, have typically been held in person at the premises of the EPO in Munich or The Hague. However, the restrictions on travel and gatherings which came into place from March 2020 as a result of the Covid-19 pandemic made it first impossible, then very difficult to hold such in-person hearings.
Before March 2020, the EPO had offered the possibility to hold oral proceedings by video conference (VICO) before the examination division. In response to the restrictions brought on by the pandemic, the EPO quickly switched to VICO being the default method to hold oral proceedings. Initially consent of all parties to the proceedings was required for the proceedings to be held by VICO, but by the beginning of 2021 such consent was no longer required. Parties would effectively be obliged to attend oral proceedings by VICO, or not at all.
However, a point on which there has been much discussion and debate is whether obliging parties to attend oral proceedings by VICO in this way is justifiable, and whether oral proceedings by VICO should remain the default even after it becomes possible once more to hold oral proceedings in person.
A recent decision of the Enlarged Board of Appeal (G1/21) has shed some light on these issues.
In the decision, the Enlarged Board expresses the view that “communicating via videoconference cannot, at least for the time being, be put on the same level as communicating in person”. The Enlarged Board goes on to state that although VICO is adequate to satisfy the right to be heard, “in-person oral proceedings are for now the optimum format”.
The reasons for in-person proceedings being optimum are as follows:
Interestingly, the Enlarged Board disagreed with one of the frequent arguments put forward, which is that “in a videoconference before a board of appeal it is not possible for a party to read the body language of the board members or otherwise visually gauge how its pleadings are received by the board” and that VICO is therefore inherently unsuitable. The Enlarged Board observes that body language, especially facial expressions, is visible in VICOs, and also that “the members of the board will normally respond to a party’s argument by way of questions or comments, rather than just a nod, a querying look or other such gesture”.
They concluded this section of the decision with the following statement:
“All in all, the Enlarged Board considers that the limitations currently inherent in the use of video technology can make it suboptimal as a format for oral proceedings…but normally not to such a degree that a party’s right to be heard or right to fair proceedings is seriously impaired”.
The Enlarged Board then went on to consider the role of the parties’ consent. They reiterate that: “a hearing in person is the optimum format, or…it is the gold standard…Therefore, in-person hearings should be the default option. Parties can only be denied this option for good reasons”. One of the “good reasons” is the current pandemic situation, where the alternative would be to postpone the proceedings indefinitely. The Enlarged Board goes on to state that “the Enlarged Board holds that at this point in time videoconferences do not provide the same level of communication possibilities as in-person oral proceedings. A party may thus have good reasons to prefer in-person oral proceedings to a videoconference”.
While the Enlarged Board’s comments are not binding on the EPO, it appears likely in view of the above that there will be a return to in-person oral proceedings as the default once the pandemic situation permits it, and that parties will once again have the right to decide how they wish to be heard. However, given the EPO’s recent announcement that opposition hearings will be held by VICO until at least 31 May 2022, it remains unclear exactly when this time will come.