Legality of videoconference Oral Proceedings – Latest developments

As we have previously reported, the legality of videoconference oral proceedings without the parties’ consent has been referred to the Enlarged Board of Appeal (EBoA). Since our last report, this referral has developed further, and we know that a single question has been referred for consideration.

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?

This question will now pass to the EBoA for consideration. As a first stage, the EBoA will likely invite written submissions from interested parties and the President of the EPO. Subsequently, the EBoA will set a date for oral proceedings where the issues will be argued in person. Finally, the EBoA will issue a written decision.

The EBoA may consider the referral inadmissible. However, even if the EBoA does look to negate the referral in this way, we expect a similar question would be referred in a subsequent case. Any future referral could arise due to a strategy to delay proceedings coming to a close, genuine concern over the use of videoconference proceedings or other commercial factors. Because of this, and given the effect this referral will have on other pending matters, many parties will want the issue to be decided quickly. We expect, and hope for, a relatively quick decision from the EBoA.

As part of the interlocutory decision containing the referral to the EBoA, the referring Board of Appeal reviewed the issues and case law and suggested that a literal interpretation of the law supported the position that the right to oral proceedings should be interpreted as a right to in-person proceedings. Additionally, the interlocutory decision reasoned that the EPC’s Travaux Préparatoires further supported this interpretation. Whilst the referring Board of Appeal considered whether other interpretations were appropriate, overall, the referring Board of Appeal seem to favour the understanding that the right to oral proceedings extends to a right to in-person proceedings.

However, the issue is now a matter for the EBoA who will decide the matter as they see fit. Given its importance to all parties, we hope a decision is issued as soon as possible.