T 2320/16 - Answering G1/21 already

 Key points

• Board 3.3.02 explains why (in their view) “Oral proceedings by videoconference are consistent with the right to oral proceedings pursuant to Article 116 EPC”.
• The Board: “a prerequisite of oral proceedings is that the parties can see the members of the board and vice versa. This distinguishes oral proceedings pursuant to Article 116 EPC from a telephone conference in which the board members and parties are not visible to each other. At the same time, it must be possible in real time for the board to interrupt or question the parties where necessary. This distinguishes oral proceedings from an exchange by letter, fax or E-mail, where an exchange of views in real time, i.e. essentially simultaneously, is not possible. Apart from the above constraints, the form in which the parties orally present their arguments - with or without physical presence - is not predetermined by Article 116 EPC”
• The respondent points to the travaux préparatoires IV/6514/61-D where a remark was made about the travel costs associated with oral proceedings. The present Board: “This meeting took place in Brussels on 13 November 1961. The cited passage demonstrates that at that time, the holding of oral proceedings was associated with the need for travel. Thus, the assumption was that oral proceedings would take place in-person. However, it cannot be deduced from this conclusion that oral proceedings by videoconference in its present-day form would not have been found acceptable by the legislator. It is not surprising that in 1961 only in-person proceedings were contemplated. Although the board is not aware of whether a videoconference was technically possible on that date, it can be stated with certainty that the technology was not sufficiently accessible, reliable, cost-efficient and of sufficient quality to the extent that its consideration as a feasible alternative to in-person oral proceedings could reasonably have been contemplated. Indeed, as set out above, requests for oral proceedings by videoconference before the Boards of Appeal before mid-2020 were generally refused on the grounds that an appropriate technical set-up was lacking. Thus, this argument is not decisive in determining whether oral proceedings by videoconference are consistent with Article 116 EPC.”

T 2320/16 

https://www.epo.org/law-practice/case-law-appeals/recent/t162320eu1.html

Reasons for the Decision

1. Article 116 EPC - the legal basis for oral proceedings by videoconference

Hereinafter, the term "in-person oral proceedings" refers to oral proceedings in which both the party or parties and the board (or department of the EPO) are physically present in the same room on the premises of the EPO. Furthermore, in addressing the question of whether oral proceedings by videoconference are consistent with the right to oral proceedings pursuant to Article 116 EPC, it is assumed that said proceedings are publically accessible as required by Article 116(4) EPC.

1.1 Introduction

The respondent submitted that the oral proceedings, held on 4 February 2021 by videoconference (using the "Zoom" videoconferencing platform) did not constitute oral proceedings pursuant to Article 116(1) EPC, but rather was at best to be considered as a case management discussion.

Article 116 EPC comprises four paragraphs, the first of which reads as follows:

"Oral proceedings shall take place either at the instance of the European Patent Office if it considers this to be expedient or at the request of any party to the proceedings. However, the European Patent Office may reject a request for further oral proceedings before the same department where the parties and the subject of the proceedings are the same." (emphasis added by the board)

For the purposes of this discussion, it is sufficient to note that similarly to paragraph (1), paragraphs (2)-(4) of Article 116 EPC also refer to "oral proceedings ... before [a department of the EPO]".

1.2 History of oral proceedings by videoconference at the EPO: the practice before the first instance

Oral proceedings by videoconference first became available in examination proceedings and were announced as a new service, on request, with the publication of "Information concerning interviews and oral proceedings to be held as a video conference" (OJ EPO 1997, 572). In order to avail of the service, applicants (or their representatives) were required to file a waiver declaration according to which the "right to oral proceedings being held in the traditional form at the EPO premises" was irrevocably renounced. Later, updated information concerning oral proceedings by videoconference was published (OJ EPO 2006, 585; OJ EPO 2012, 354; OJ EPO 2018, A96). The updated information differed from the initial announcement in 1997 inter alia in that the practice of requiring a waiver declaration was abandoned, and it was stated that "[o]ral proceedings held by videoconference are equivalent to oral proceedings held in the traditional manner on the premises of the EPO. Consequently a request for further oral proceedings before the same department (whether by videoconference or any other form) may be rejected where the parties and the subject of the proceedings are the same (Article 116(1) EPC)".

In a decision of the President of the EPO dated 1 April 2020 (OJ EPO 2020, A39), it was stipulated that oral proceedings before examining divisions were to be held by videoconference, and on the premises of the EPO only if there were serious reasons not to hold a videoconference, such as the need to take evidence (see also OJ EPO 2020, A40). With a decision of the President of the EPO and accompanying notice (OJ EPO, 2020, A41 and A42), the launch of a pilot project for oral proceedings by videoconference before opposition divisions, with the agreement of all parties, was announced. With the decision of the President of the EPO dated 10 November 2020 and accompanying notice (OJ EPO 2020, A121 and A122), it was inter alia announced that the pilot project would be extended until 15 September 2021, and as previously decided for examination proceedings, that oral proceedings before opposition divisions were to be held by videoconference, and on the premises of the EPO only if there were serious reasons not to hold a videoconference.

1.3 History of oral proceedings by videoconference at the EPO: the practice before the Boards of Appeal

The approach of the first instance, according to which oral proceedings by videoconference were considered equivalent to oral proceedings on the premises of the EPO (and thus as oral proceedings pursuant to Article 116 EPC), has to date not been challenged in a case leading to a decision of the Boards of Appeal. This is not surprising given that until recently (supra), oral proceedings by videoconference in both examination and opposition proceedings could only take place with the consent of the parties.

By means of a series of communications published on the website of the Boards of Appeal regarding measures adopted due to the coronavirus pandemic (dated 6, 15, and 25 May, 29 July and 19 October 2020), it was announced that oral proceedings before the Boards of Appeal could take place by videoconference, with the agreement of the parties concerned. Provisions for the attendance of members of the public pursuant to Article 116(4) EPC were also addressed.

Decision T 1378/16 of 8 May 2020 concerned an appeal from a decision of an examining division to refuse a European patent application. This was the first case before the Boards of Appeal in which oral proceedings were held by videoconference (reasons, 1.1), and was held with the agreement of the appellant (reasons, 1.5). It was noted therein that in the past, the Boards had rejected requests to hold oral proceedings by videoconference on the basis that a general framework, in particular, provisions for suitable videoconference rooms and the attendance of the public, were lacking (reasons, 1.2, first paragraph). However, it was also noted that earlier decisions of the Boards had held that Article 116 EPC did not mandate that oral proceedings take place with the physical presence of the parties, and that therefore it was within the discretion of the board concerned to decide whether or not to select this form for the parties' oral submissions (reasons, 1.2, second paragraph).

The board in T 1378/16 endorsed this earlier interpretation of the legal framework and stated (reasons, 1.3):

"Hence, oral proceedings held by videoconference are not excluded by the EPC and fulfill 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 parties present orally their arguments - with or without physical presence - is not predetermined by Article 116 EPC."

A user consultation on an amendment to the Rules of Procedure of the Boards of Appeal was published on the website of the Boards of Appeal on 13 November 2020. Proposed Article 15a RPBA stipulated inter alia that "the Board may decide to hold oral proceedings pursuant to Article 116 EPC by videoconference if the Board considers it appropriate to do so, either upon request by a party or of its own motion" (paragraph (1)). Thus, according to this provision, the express agreement of the parties to the proceedings was no longer required ("Explanatory remarks" accompanying the proposed text, point 2). According to said remarks, proposed new Article 15a RPBA fell within the legal framework of Article 116 EPC (points 4-7): neither Article 116 EPC nor any other article of the EPC or the RPBA 2020 stipulated that parties to the proceedings, their representatives or members of the board must be physically present in the oral proceedings room. Therefore, according to these explanatory remarks, neither the EPC nor the RPBA 2020 excluded oral proceedings by videoconference.

In a communication published on the website of the Boards of Appeal dated 15 December 2020, reference was made to the adoption by the Boards of Appeal Committee of new Article 15a RPBA (BOAC/16/20). It was stated in said communication that:

"From 1 January 2021 boards may conduct oral proceedings by VICO even without the agreement of the parties concerned, as has now been made clear in the new Article 15a RPBA adopted by the Boards of Appeal Committee. Since the new provision merely clarifies an existing possibility, boards may adapt their practice as regards dispensing with the need to obtain the agreement of the parties concerned even before the date of its entry into force."

1.4 The present case

As far as the board is aware, the present decision concerns the first case before the Boards of Appeal for which oral proceedings by videoconference were held without the agreement of a party to the proceedings.

The board had thus to decide whether oral proceedings by videoconference constituted oral proceedings pursuant to Article 116 EPC. In this context, the arguments concerning proposed Article 15a RPBA do not need to be addressed, since on the date of the oral proceedings at which the present decision was taken, it had not entered into force.

Furthermore, the board is aware of interlocutory decision T 1807/15, in which the following question was referred to the Enlarged Board of Appeal:

"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?"

The present decision, taken at oral proceedings held on 4 February 2021, predates both the referring decision (12 March 2021) and the oral proceedings during which the parties were informed of the intention of the referring board to refer a question to the Enlarged Board of Appeal (8 February 2021). As a consequence, the referring decision is not relevant to the present decision, and is not addressed in the following.

1.5 The interpretation of Article 116 EPC

It is established jurisprudence of the Enlarged Board of Appeal that the principles of interpretation provided for in Articles 31 and 32 Vienna Convention are to be applied when interpreting the EPC (e.g. G 2/12, reasons, V.(1)-(5); G 5/83, reasons, 1-6).

1.5.1 According to Article 31(1) Vienna Convention, "a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose".

As noted in G 2/12 (reasons, V.(4)), this objective method of interpretation is directed to establishing the authentic meaning of the relevant provision and its legal terms. The starting point for interpretation is thus the wording, i.e. the objective meaning, regardless of the original subjective intention of the contracting parties. To this end, the provisions are to be read in their context so that they comply with the object and purpose of the EPC.

1.5.2 Article 116 EPC states that "[o]ral proceedings shall take place ...". It does not define in any way the exact form of those proceedings, other than the proceedings being oral in nature. In particular, it does not explicitly exclude oral proceedings by videoconference.

In the board's view, a prerequisite of oral proceedings is that the parties can see the members of the board and vice versa. This distinguishes oral proceedings pursuant to Article 116 EPC from a telephone conference in which the board members and parties are not visible to each other. At the same time, it must be possible in real time for the board to interrupt or question the parties where necessary. This distinguishes oral proceedings from an exchange by letter, fax or E-mail, where an exchange of views in real time, i.e. essentially simultaneously, is not possible.

Apart from the above constraints, the form in which the parties orally present their arguments - with or without physical presence - is not predetermined by Article 116 EPC (in agreement with T 1378/16, reasons, 1.3).

1.5.3 In this context, the respondent submitted that a videoconference was inferior to in-person oral proceedings since in the former, non-verbal communication was almost impossible.

The board disagrees. It is indeed a fact that oral proceedings by videoconference are different to oral proceedings in-person. In particular, it is indisputable that the transmission and perception of non-verbal communication signals ("body language") are not the same. The board does not deny that some forms of non-verbal communication (eye contact, for example) are not possible during a videoconference. On the other hand, it is not correct to state, as the respondent did, that non-verbal communication is almost impossible. In fact, in the present proceedings, the faces and therefore the facial expressions of the participants could be clearly perceived on screen. If desired, the technical possibility existed to expand a specific participant's video feed to appear on the entire screen, thereby enhancing visibility.

Furthermore, in-person oral proceedings pursuant to Article 116 EPC accommodate different settings with regard to the visibility of the parties to the board and vice-versa. For instance the visibility of the board members' facial expressions will vary depending on the spatial distance of the representative(s) from the board members in the oral proceedings room. The extent of this variation, accommodated by Article 116 EPC for in-person oral proceedings, is not necessarily narrower than the difference between in-person and videoconference oral proceedings.

Hence, while accepting that there are differences in the transmission and perception of non-verbal communication signals, the board is not convinced by the argument that said differences necessarily render communication inferior or degraded, let alone degraded to an unacceptable level in oral proceedings by videoconference compared to in-person oral proceedings.

Therefore, the presence of differences between oral proceedings by videoconference and in-person oral proceedings as such is not a valid ground for considering oral proceedings by videoconference to be inconsistent with the right to oral proceedings pursuant to Article 116 EPC.

The relevant issue in the view of the board is not the identification of the differences between in-person oral proceedings and oral proceedings by videoconference per se, but concretely, the identification of a causal relationship between a specific difference or differences and a non-compliance with the object and purpose of oral proceedings pursuant to Article 116 EPC. The respondent in the present case did not identify any such relationship.

1.5.4 The respondent submitted that all four paragraphs of Article 116 EPC referred to oral proceedings "before" a department of the EPO, and that in a judicial context, the term "before" in relation to a court referred exclusively to attendance in person. This view was supported by decision T 1012/03.

The board disagrees. The term "before" in a judicial context is to be understood as "under the consideration of, or being judged or decided by". This interpretation is supported by many other provisions of the EPC in which the same term is employed in relation to proceedings before the EPO or a department thereof, none of which are to be understood as requiring physical presence, for example:

Article 14(2) EPC: "Throughout the proceedings before the European Patent Office, such translation may be ...";

Article 60(3) EPC: "In proceedings before the European Patent Office, the application shall be deemed ...";

Article 70(1) EPC: "The text of a European patent application ...shall be the authentic text in any proceedings before the European Patent Office ...";

Article 114(1) EPC: "In proceedings before it, the European Patent Office shall examine ...";

Article 115 EPC: "In proceedings before the European Patent Office, following the publication ...";

Article 123(1) EPC: "The European patent application ... may be amended in proceedings before the European Patent Office ..."; and

Article 134 EPC, entitled "Representation before the European Patent Office".

1.5.5 Decision T 1012/03, cited by the respondent to support its interpretation of the term "before", does not deal specifically with the present issue but with the question of whether a party is entitled to having oral proceedings held in Munich rather than in The Hague. Although the respondent only cited the decision in general, the board understands its arguments as a reference to points 37 and 38 of the reasons. Here, the deciding board concluded in point 37, second paragraph, that "the word "before" [in Article 116 EPC] also implies a location "where" the proceedings have to be carried out, namely at least at the place where the relevant department is located".

However, the context of this conclusion must be taken into account. In point 37 of the reasons, first paragraph, the board set out the following:

"The various expressions used in paragraphs 1 to 4 of Article 116 EPC, namely "before the same department", "before the Receiving Section", "before the Receiving Section, the Examining Divisions and the Legal Division" and "the department before which the proceedings are taking place" can be read as a reference to the function of the department or Division as a deciding body." (emphasis added by the present board)

This interpretation is similar to that provided by the present board, above.

Thus the interpretation of the term "before" in T 1012/03 to imply a particular location was a consequence of the perceived necessity, in the context of the decision, for the division to be located at a specific place. There is no indication in T 1012/03 that in arriving at this interpretation, the deciding board considered, and therefore excluded, the possibility of holding oral proceedings by videoconference. In the case at hand the board was merely required to determine whether the appellant's request to have oral proceeding held in Munich had any legal basis, and if not, whether The Hague was the correct place for holding oral proceedings. Thus, the specific question was exclusively one of geographical location which did not require the consideration of oral proceedings by videoconference. The context in which decision T 1012/03 was taken is thus entirely different from that underlying the question to be dealt with in the present case.

1.5.6 A similar conclusion can be drawn in relation to Enlarged Board of Appeal decision G 2/19 (OJ EPO 2020, A87). In that decision, it was decided that oral proceedings before the Boards of Appeal at their site in Haar (instead of in the city of Munich) did not infringe Articles 113(1) and 116(1) EPC (order, 2). In the reasons for the decision (C, IV, final paragraph) it was stated in connection with the location of oral proceedings that:

"Die Nutzer des Angebots der Europäischen Patentorganisation werden zwar darauf vertrauen dürfen, dass die Organe des Europäischen Patentamts ihre Handlungen nicht an beliebigen dritten Orten vornehmen"

(Translation from OJ EPO 2020, A87: "Users of the European Patent Organisation's services can legitimately expect that the European Patent Office's departments will not perform acts at whatever other place they choose").

However, this statement was made in the context of the potential choice of a geographical location being perceived as adversely affecting the exercising of parties' rights (reasons, C, IV, point 1, first paragraph). This is a similar context to that addressed in T 1012/03, but different to that underlying the present case. In oral proceedings by videoconference, the potential for location to adversely effect the parties' rights does not arise: oral proceedings by videoconference do not take place at a specific geographical location, or alternatively, could be considered to be "located" everywhere with access to a reliable internet connection of sufficient bandwidth.

1.5.7 The respondent also argued that traditionally, oral proceedings at the EPO had until recently, for the most part, been held with the physical presence of the parties before the department in question. This is however not sufficient grounds to conclude that oral proceedings by videoconference are not in line with Article 116 EPC. Indeed, until mid-2020, requests to hold oral proceedings by videoconference were refused by the Boards on the grounds that a general framework, including an appropriate technical set-up, was not in place (e.g. T 1266/07, reasons, 1.1-1.3).

Thus, taking the ordinary meaning of the terms present in Article 116 EPC into account (point 1.5.1, above), it cannot be concluded that oral proceedings by videoconference infringe the right to oral proceedings as defined in this Article.

1.5.8 According to Article 32 Vienna Convention, supplementary means of interpretation including the preparatory work of the treaty (the travaux préparatoires) may serve to confirm the meaning resulting from the application of Article 31, or to determine the meaning when the interpretation according to Article 31 leaves the meaning ambiguous or obscure; or leads to a result which is manifestly absurd or unreasonable.

In this respect, the respondent submitted that according to the travaux préparatoires for Article 116 EPC (or more precisely, Article 116 EPC 1973), a discussion took place regarding travel for the purpose of oral proceedings. This was consistent with the idea that travel would be required, and therefore that oral proceedings pursuant to Article 116 EPC were to be understood as exclusively limited to in-person proceedings.

The respondent did not support its arguments by reference to specific passages within the large body of documentation available. The board is aware of only one such reference, specifically in the travaux préparatoires IV/6514/61-D (pages 82-83) entitled "Erörterungen zu Artikel 96 a) des Vorentwurfs". In answering the question of whether oral proceedings should be obligatory or optional, it was stated (page 83, second paragraph):

"Die Gruppe genehmigt einstimmig die fakultative Lösung. Die obligatorische Lösung scheitert nämlich an den Schwierigkeiten, die sich aus den grossen Entfernungen im Geltungsbereich des europäischen Patents, aus den hohen Kosten und aus den Sprachproblemen ergeben." (emphasis added by the board)

Translation by the board: "the group unanimously approves the optional solution. The obligatory solution fails due to the difficulties arising from the great distances within the area of validity of European patents, from the high costs and from language problems"

This meeting took place in Brussels on 13 November 1961. The cited passage demonstrates that at that time, the holding of oral proceedings was associated with the need for travel. Thus, the assumption was that oral proceedings would take place in-person. However, it cannot be deduced from this conclusion that oral proceedings by videoconference in its present-day form would not have been found acceptable by the legislator. It is not surprising that in 1961 only in-person proceedings were contemplated. Although the board is not aware of whether a videoconference was technically possible on that date, it can be stated with certainty that the technology was not sufficiently accessible, reliable, cost-efficient and of sufficient quality to the extent that its consideration as a feasible alternative to in-person oral proceedings could reasonably have been contemplated. Indeed, as set out above, requests for oral proceedings by videoconference before the Boards of Appeal before mid-2020 were generally refused on the grounds that an appropriate technical set-up was lacking. Thus, this argument is not decisive in determining whether oral proceedings by videoconference are consistent with Article 116 EPC.

The travaux préparatoires to Article 116 EPC 1973 therefore neither confirm nor contradict the board's interpretation of Article 116 EPC provided above.

1.5.9 As set out above, the legislator during preparations for EPC 1973 would not have contemplated oral proceedings by videoconference, and therefore would not have seen any necessity, had it so intended, to formulate Article 116 EPC 1973 such as to explicitly limit oral proceedings to in-person proceedings. However, the situation at the time of the Revision Conference in 2000 was different. At the time of the preparatory work (1998-2000), oral proceedings by videoconference were not only an accessible technical reality, but as noted above, had been proposed by the President of the EPO as an alternative to in-person oral proceedings in examination (OJ EPO 1997, 572). If the legislator revising the EPC had intended for Article 116 EPC to exclude oral proceedings by videoconference, it is implausible that it would decide not to amend the provision accordingly and in particular, accept the provision as it stood, not comprising any explicit limitation to in-person oral proceedings, or at least being open to interpretation. To the board, it is much more plausible that the legislator did not intend any limitation in Article 116 EPC to a specific form for oral proceedings, and hence, saw no need to amend it. This serves as an indirect pointer to the interpretation of Article 116 EPC provided by the board above. In this context, it is not irrelevant to note that where the legislator had deemed procedural limitations necessary, these were explicitly set out in the EPC, for example in Article 117(2)-(6) EPC 1973 concerning procedures for the taking of evidence.

The respondent argued that the fact that Article 116 EPC was unamended in the Act revising the Convention on the Grant of European patents in 2000, was an indication that the legislator intended to maintain the status quo in Article 116 EPC that oral proceedings were to be understood as in-person proceedings. Article 117 EPC 1973, for example, was amended by transferring procedural provisions present in this Article to the Implementing Regulations, thereby allowing the Administrative Council to subsequently provide for the taking of evidence by videoconference. Hence, the authority to amend the meaning of Article 116 EPC lay with a future EPC revision conference, and not with the President of the Boards of Appeal.

The board does not agree. The situation for Article 117 EPC 1973 was different in that unlike Article 116 EPC 1973, it contained specific procedural provisions. In fact, in the preparatory documents for the revision of the EPC 2000, concerning the revision of Article 117 EPC 1973 (MR/2/00, page 149), it was stated that "[n]ew Article 117(2) EPC replaces the present Article 117(2)-(6) EPC. The details of the procedure for taking evidence are transferred to the Implementing Regulations." Hence, no conclusion regarding the interpretation of Article 116 EPC can be drawn from the way in which Article 117 EPC 1973 was amended in the EPC 2000.

1.5.10 There is also no need for the board to seek further means of interpretation. Article 125 EPC is not concerned with the interpretation of the EPC but serves merely as a "fill-in" in case of missing procedural provisions (G 2/12, reasons, V, (1)). As set out above, Article 116 EPC is understood not to impose any limitation on the specific form of oral proceedings, and there is therefore nothing to "fill". Furthermore, the board doubts whether procedural law in the contracting states is sufficiently developed and harmonised with regard to the status of oral proceedings by videoconference to the extent that the latter could be considered as one of the "principles of procedural law generally recognised in the contracting states" (cf. Article 125 EPC).

1.5.11 Regarding a "dynamic interpretation" of Article 116 EPC, as addressed by the respondent, the board is of the following view. The "dynamic interpretation" is a further approach to construing inter alia a legal provision of the EPC. This method of interpretation could come into play where considerations had arisen since the Convention was signed which might give reason to believe that a literal interpretation of the provision's wording would conflict with the legislator's aims, and might thus lead to a result which diverges from the wording of the law (G 3/19, reasons, XXII; G2/12, reasons, VIII, (2), 1, (1); G3/98, reasons, 2.5, final paragraph). As noted in the foregoing, the board finds that oral proceedings by videoconference are consistent both with the literal interpretation and with the legislative intent underlying Article 116 EPC 1973 and 2000. The question of whether a dynamic interpretation of Article 116 EPC has to be considered therefore does not arise.

1.5.12 Finally, the board does not consider the potential for problems of a technical nature to play a role in determining whether oral proceedings by videoconference are consistent with the right to oral proceedings pursuant to Article 116 EPC. If technical difficulties (e.g. related to videoconferencing software, or due to a poor internet connection) were to prevent a party from adequately participating in oral proceedings by videoconference, it would be incumbent on the board to seek a solution, or alternatively, postpone oral proceedings to a future date, if necessary. How to proceed in such a situation would be at the discretion of the board, with due care for the parties' right to be heard pursuant to Article 113(1) EPC.

1.6 In conclusion, oral proceedings by videoconference are consistent with the right to oral proceedings pursuant to Article 116 EPC.

1.7 The board's discretion to hold oral proceedings by videoconference

As a consequence of the above conclusion regarding the interpretation of Article 116 EPC, the discretion to hold oral proceedings by videoconference lies with the board.

The respondent argued that even if it were accepted that oral proceedings by videoconference were compatible with Article 116 EPC, by enforcing oral proceedings by videoconference on the date originally scheduled for in-person oral proceedings, the board had not exercised its discretion in a reasonable manner. The respondent presented arguments (XII, above) according to which there was no urgent need for the case to be heard as soon as possible.

The board does not agree with the respondent's position. In view of the worldwide coronavirus pandemic and related international travel restrictions, ongoing on the date scheduled for oral proceedings, it was not possible for either party to the present proceedings to travel to Munich to attend in-person oral proceedings. In the communication of the registry dated 15 January 2021, sent on behalf of the board, it was stated that in the midst of a worldwide pandemic, it was incumbent on the board to maintain access to justice for all parties concerned. This applied in particular in view of the delay that would be incurred, were proceedings to be postponed.

The board maintains the view that such a delay would be both unacceptable and unnecessary. In particular, since oral proceedings by videoconference are consistent with the right to oral proceedings pursuant to Article 116 EPC, there was no need for oral proceedings to be rescheduled to a later date as a result of travel restrictions.

Furthermore, the respondent's argument that the case was not urgent is not convincing. The board agrees with the appellant that even accepting the respondent's submission regarding the rights of third parties being restricted due to a 10 year term of "data exclusivity", i.e. until March 2023, the appellant has an interest in legal certainty well in advance of that date.

Consequently, the board exercised its discretion to hold oral proceedings by videoconference in a reasonable way.