G1/21 proceedings adjourned! What happened?

A hearing in G1/21, concerning the legality of holding oral proceedings by video conference without the consent of the parties took place before the Enlarged Boards of Appeal (EBA) on 28 May 2021 by video conference. It was however postponed until the first week of July at the request of the Opponent.

The decision in this case touches on fundamental points of European patent law, affects many users as well as the working practice of the EPO: more than 40 Amicus Curiae Briefs (including one by Murgitroyd) and comments from the President of the EPO were submitted to the attention of the EBA in advance to the hearing.

On 17 May 2021, following objections of partiality of the EBA raised by the Opponent, the EBA issued an interlocutory decision ordering a new composition of the EBA panel, replacing both the Chairman and a legally qualified member.

In response to the interlocutory decision the Opponent already requested postponement of the oral proceedings, arguing that the change of the EBA panel, 5 working days before the hearing did not give the new members enough time to familiarize themselves with the case. Further objection of partiality of some of the remaining members were also raised.

One day before the oral proceeding the public learnt that the request of postponement had been rejected and the scheduled oral proceeding would initially be dedicated in a non-public format to hear the Opponent objections and shall continue only if the objections were found inadmissible.

The livestream of the oral proceedings started on time at 9am CET, with the introduction of the parties and summary of the facts, but was soon after interrupted to continue non-publicly as announced.

The hearing resumed only at 1pm. The Opponent objections were found inadmissible and the request to postpone the proceedings was denied.

Convinced that the hearing had to be postponed, the Opponent argued that they received official notification of the submission of President of the EPO, dated 27 April 2021, only two days before the oral proceedings. According to Art. 9 of the Rules of procedure of the Enlarged Board of Appeal the parties are entitled to provide comments to such a submission. However, such a late notice did not give the Opponent enough time to comment and for this reason the Oral proceedings should be postponed.

The representatives of the EPO counter argued that the matter is urgent and relevant to a large number of cases. It should therefore be decided with no delays and postponements. Further, their President’s submission was published at the end of April on the EPO website and therefore the parties were aware of its content.

After deliberation, the EBA has decided to allow the opponent one month time to file comments to the submission of President of the EPO. Oral proceedings will be re-scheduled on the first week of July 2021.

As users we are relieved that a publication on the EPO website cannot replace an official notification.

In fact, as argued by the Opponent, all we want as users is a fair and diligent proceedings, even in cases that require urgency.