T 1378/16 - Video oral proceedings Board

Key points

• In this examination appeal, the appellant agreed to oral proceedings being held through video conferencing.
• “Oral proceedings that took place on 8 May 2020 were the first held by videoconference in the history of the Boards of the Appeal of the EPO. Unlike some national legal systems, the EPC does not stipulate explicitly the form(s) in which oral proceedings under Article 116 EPC shall take place. For these reasons, the Board considers it appropriate to address briefly the legal basis for oral proceedings within the meaning of Article 116 EPC.”
• “oral proceedings held by videoconference are not excluded by the EPC and fulfil the requirements for holding oral proceedings within the meaning of Article 116 EPC. The EPC only requires that the public character of the proceedings be ensured (Article 116(4) EPC). The form in which the parties present orally their arguments - with or without physical presence - is not predetermined by Article 116 EPC.”
• I suppose that question whether Article 116 EPC implies a right to ‘physical’ [in person] oral proceedings (or whether alternatively a voice-only or video conference call is enough) might be something that the Enlarged Board possibly has to decide on in due time in connection with mandatory video oral proceedings in cases where a party insists on oral proceedings in person.
• G 2/19 clarified that under Article 116 EPC, the mere formal opportunity to present arguments orally is not enough, because there are limits at least to the time and place: "Parties seeking justice may perceive the choice of an entirely unusual place or date as an unwillingness to address their concerns and so regard it as adversely affecting them in the exercise of their rights to a degree that is unacceptable for legal purposes". I note that the time and place are neither 'predetermined' by the literal text of Article 116 EPC and still the Enlarged Board (rightly in my view) recognized that there are limits on them. The same may apply to the 'format' (video, audio-only / orally, in person). 

EPO T 1378/16 -  link

Reasons for the Decision

1. Procedural aspects: oral proceedings held by videoconference

1.1 Oral proceedings that took place on 8 May 2020 were the first held by videoconference in the history of the Boards of the Appeal of the EPO. Unlike some national legal systems, the EPC does not stipulate explicitly the form(s) in which oral proceedings under Article 116 EPC shall take place. For these reasons, the Board considers it appropriate to address briefly the legal basis for oral proceedings within the meaning of Article 116 EPC.

1.2 In the past, the Boards have rejected requests that the oral proceedings be held by videoconference (ViCo), mainly on the grounds that there was no "general framework" to this effect. In particular, there were no provisions made for suitable ViCo rooms and for the public to attend such ViCo-based hearings (see e.g. T 1266/07, Reasons, point 1; T 2068/14, Reasons, point 1.2.2).

At the same time, the Boards held that Article 116 EPC did not mandate that oral proceedings take place with the physical presence of the parties. As pointed out in T 2068/14, "while a video conference does not allow such direct communication as the face-to-face meeting involved in conventional oral proceedings, it nevertheless contains the essence of oral proceedings, namely that the board and the parties/representatives can communicate with each other simultaneously" (see point 1.2.3 of the Reasons). Hence, several Boards considered that it was in their discretion to decide whether nor not to select this form for the parties' oral submissions (T 2068/14, Reasons, point 1.2.2; T 195/14, Reasons, point 1; T 932/16, Reasons, point 1.1).

1.3 The present board agrees with this interpretation of the legal framework. Hence, oral proceedings held by videoconference are not excluded by the EPC and fulfil the requirements for holding oral proceedings within the meaning of Article 116 EPC. The EPC only requires that the public character of the proceedings be ensured (Article 116(4) EPC). The form in which the parties present orally their arguments - with or without physical presence - is not predetermined by Article 116 EPC.

1.4 Against this background, in the present case, the board considered it appropriate and expedient to convert the scheduled in-person oral proceedings into oral proceedings held by videoconference (cf. point II above). Indeed, and in contrast to the circumstances under which the decisions mentioned above were issued, the Boards of Appeal have now at their disposal suitable rooms at their premises for ViCo-based hearings.

Furthermore, appropriate provisions have been made for the public to attend such hearings. By means of a communication published on the website of the Boards of Appeal on 6 May 2020, it was indicated that "[o]ral proceedings will be conducted by VICO only in agreement with the parties concerned" and that "[a]ny member of the public wishing to attend oral proceedings conducted by VICO may do so in a dedicated room located at the premises of the Boards of Appeal in Haar".

1.5 The appellant agreed to oral proceedings being held without its physical presence. During those oral proceedings held on 8 May 2020, the public attended them by means of an additional connection to the board's videoconference system set up from a dedicated room at the premises of the Boards of Appeal.