Düsseldorf, March 24, 2021 – The European Patent Office (EPO) announced on November 10, 2020 that oral proceedings before the boards of appeal can be organized as video conferences even without the consent of the parties (cf. C&F Press Release of December 22, 2020). One board of appeal of the EPO has meanwhile called this new procedure into question (T1807/15, EP04758381.0) and drafted a question which it has referred to the Enlarged Board of Appeal (EBA) for a decision.

The referring board has drawn on a literal, systematic, historic and teleological interpretation of Article 116 of the European Patent Convention (EPC). In a comprehensive presentation, the board comes to the conclusion that, in the absence of the consent of the parties, oral proceedings as video conference are not compatible with the said Article. The reason given for this is that “oral proceedings” as defined in the EPC refer to proceedings with personal attendance. However, if the parties agree, oral proceedings as video conference are to be possible.

“This initiative by the board of appeal calls the lawfulness of the current practice of the EPO into question,” says Jan Ackermann, patent attorney and partner at Cohausz & Florack (C&F). “The reservations of the board of appeal reflect the views of many parties: conducting proceedings as a video conference may make sense, but should only be possible if all involved agree.” The proceedings before the EBA will be taking place on May 28, 2021 (G 1/21) – in the form of a video conference in line with current practice.