T 3277/19 - Video oral proceedings

Key points

• The Board held the oral proceedings on premises despite the request for vico oral proceeding in this opposition appeal.
•  "The Board found that the subject-matter of the proceedings involved complex explanations of the duct's geometry in relation to the visualisation of several virtual planes and intersections, which made in-person proceedings the appropriate format to be used in the present case. This was already explained in item 9 of the Board's communication pursuant to Article 15(1) RPBA 2020 and the parties did not further comment on this at the oral proceedings."
• " Notably, in the oral proceedings itself flipchart drawings (see the minutes) using various colours and simultaneous explanations while developing the drawings on several occasions were made by the appellant, which the Board considers merely confirms why in-person oral proceedings was the appropriate format for these proceedings, despite both parties requesting oral proceedings by videoconference. Whilst drawings or sketches supporting or helping to illustrate oral submissions could also be made at oral proceedings held by videoconference in a different way, e.g. by sharing the screen or by using the whiteboard, the Board considered in-person oral proceedings the more appropriate and efficient format in the circumstances of the present case, not least since it expected lengthy discussions on issues for which such visual aids might be referred to often and extensively."
• As a comment, the Board clearly articulates case-specific reasons for holding oral proceedings in person against the wishes of the parties. 

EPO 

The link to the decision is provided after the jump, as well as (an extract of) the decision text.

https://www.epo.org/en/boards-of-appeal/decisions/t193277eu1

1. Requests for oral proceedings by videoconference

1.1 Both parties requested that the oral proceedings be held by videoconference. However, the Board did not change the format of the oral proceedings from that as summoned, which thus remained in-person on the EPO premises.

1.2 The Board found that the subject-matter of the proceedings involved complex explanations of the duct's geometry in relation to the visualisation of several virtual planes and intersections, which made in-person proceedings the appropriate format to be used in the present case. This was already explained in item 9 of the Board's communication pursuant to Article 15(1) RPBA 2020 and the parties did not further comment on this at the oral proceedings. Notably, in the oral proceedings itself flipchart drawings (see the minutes) using various colours and simultaneous explanations while developing the drawings on several occasions were made by the appellant, which the Board considers merely confirms why in-person oral proceedings was the appropriate format for these proceedings, despite both parties requesting oral proceedings by videoconference. Whilst drawings or sketches supporting or helping to illustrate oral submissions could also be made at oral proceedings held by videoconference in a different way, e.g. by sharing the screen or by using the whiteboard, the Board considered in-person oral proceedings the more appropriate and efficient format in the circumstances of the present case, not least since it expected lengthy discussions on issues for which such visual aids might be referred to often and extensively.

This reasoning applied to both parties such that the purpose would have been defeated by letting the appellant attend the oral proceedings by videoconference as provided for in Article 15a(2) RPBA 2020.

The appellant stated in writing that in-person oral proceedings are "much more complicated, time-consuming and expensive" and "cause much more CO2 emissions than oral proceedings held by videoconference". The Board did not see why in-person oral proceedings could possibly be more complicated, but could follow the other aspects on a general level and seen from a party's perspective. Nevertheless, as regards the present case, these aspects did not outweigh the need to hold oral proceedings in the appropriate format determined by the Board and for the reasons already given.

The appellant's argument that the COVID-19 pandemic "is not yet over" and that postponements may be avoided by holding the proceedings by videoconference, did not outweigh the aspects due to which the Board determined the format to be in-person. Whilst the COVID-19 pandemic is admittedly not over, the incidence of COVID-19 at the time at which the Board first dealt with the request for oral proceedings by videoconference was very low and the appellant did not show that it was restricted in travelling due to this. Nor was any postponement considered likely or indeed necessary. Should a party nevertheless have been restricted, the Board always had the possibility to alter the format to a videoconference at short notice, even if this may have given rise to other difficulties e.g. to lengthy oral proceedings or difficulties in understanding parties' arguments in relation to the duct geometry.

The appellant's further argument that the videoconference format was suitable since "the appeal proceedings are based on documentary evidence only" is as such incorrect. It is the combination of at least oral and written submissions comprising requests, allegations of fact, objections, arguments, and any documentary evidence which is taken into account in proceedings before the Board, subject to any non-admittance issues. In as far as the appellant's statement was to be understood so as to distinguish the current case from other cases in which evidence would have to be taken by inspection or by hearing witnesses, the Board was nevertheless of the view after taking this argument into consideration that in-person oral proceedings was the appropriate format for the considerations set out above.

1.3 The Board is also aware that the "Oktoberfest" (and indeed any trade fairs or other large-scale events) may sometimes make travel and accommodation more complex and expensive, but the respondent did not make this argument before the oral proceedings took place such that it came too late to have any effect on the Board's decision. Nor indeed was any evidence provided in this regard, albeit the Board accepts that last minute available flights or other transportation options and accommodation are often less numerous. Whether such problems could anyway have been largely mitigated by the respondent in the present case by early booking of e.g. travel arrangements, given the fact that the summons to in-person oral proceedings was issued in March 2022, can also be left undecided.