- The Board refuses a request for video conference oral proceedings in this examination appeal. That is as such not very surprising. However, the Board adds that " Furthermore, the applicant has not provided any reason why the board should, exceptionally, organise the oral proceedings by video-conference", citing T 2068/14.
- In that decision, the Board had held that "the onus is on the appellant to persuade the board that conventional oral proceedings are not appropriate to properly present the appellant's case and that the board should exercise its discretion to, exceptionally, explore the possibility of holding oral proceedings by video conference."
- It seems that oral proceedings in examination appeals could therefore be allowable in exceptional cases.
EPO T 2313/12 - link
Reasons for the Decision
1. The appeal is admissible.
Request for a video-conference
2. With the letter dated 27 December 2017, the appellant requested that any oral proceedings be held by video-conference.
The board refused this request for the following reasons:
The holding of oral proceedings by video-conference is only provided for in the case of ex parte proceedings before an examining division, see "Updated information from the European Patent Office dated 1 May 2012 concerning interviews and oral proceedings to be held as a video-conference" (OJ EPO 2012, 354) and the Guidelines for Examination, November 2017 edition, E-III, 11.1.1.
The holding of oral proceedings by video-conference is not currently possible for the appeal procedure because there are no corresponding provisions for the boards of appeal, and the Rules of Procedure of the Boards of Appeal of the European Patent Office (RPBA, OJ EPO 2007, 536) are silent on this subject (see also T 1266/07 and T 663/10). Furthermore, Article 116(3) EPC provides that oral proceedings before the examining division are not public, whereas under Article 116(4) EPC oral proceedings before the boards of appeal are public. However, there is currently no general framework for making video-conferencing compatible with the requirement that oral proceedings before the boards of appeal must be public (see T 1266/07, Reasons 1.2, and the Case Law of the Boards of Appeal of the European Patent Office, 8th edition 2016, III.C.4.6).
Furthermore, the applicant has not provided any reason why the board should, exceptionally, organise the oral proceedings by video-conference (see T 2068/14, Reasons 1.2).
Why has this possibility not been envisaged in the draft new rules of proceedings before the BA? Publicity of the debate is nothing new, and means could be found to organise this.
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