Case G1/21: EBA gives no clarity about videoconferencing
July 16, 2021
In its much-awaited decision in case G 1/21, the Enlarged Board of Appeal (EBA) of the EPO has evaded to answer the high-profile question whether videoconferencing against the will of (one of) the parties is compatible with the right to oral proceedings.
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The case has drawn a lot of attention. Many law firms, lawyers associations and companies argue that it is incompatible with the EPC that oral proceedings by videoconference can be imposed by EPO Boards even if the parties don’t want it, as a new Article 15a of the Rules of Procedure of the Boards of Appeal (RPBA) provides. The Article entered into force on 1 April 2021.
No less than 47 amicus curiae briefs were filed in case G 1/21 (see this earlier post), many of them criticizing Article 15a RPBA and also the hasty way a ‘new normal’ was introduced by the EPO management without clear explanation. Oral proceedings by videoconference have become much more common due to the Covid-19 pandemic, but this doesn’t mean a general rule allowing the EPO to impose videoconferences can be introduced, they argue.
Some also questioned the impartiality of the EBA, as its chairman Carl Josefsson and other members were involved in the introduction of the very Article 15a they had to decide upon. By interlocutory decision of 17 May 2021, Josefsson and another member of the EBA were replaced.
In today’s decision, the EBA circumvented the fundamental question of the compatibility of article 15a with article 116(1) EPC, and restricted itself to a decision concerning a situation of oral proceedings during a ‘general emergency’. In a press release it stated:
“In G 1/21 the Enlarged Board of Appeal limited the scope of its answer to the more broadly formulated question referred by Technical Board 3.5.02, by confining its order to oral proceedings that are held during a period of general emergency impairing the parties’ possibilities to attend in-person oral proceedings at the EPO premises and moreover are conducted specifically before the Boards of Appeal.
Accordingly, in its order the Enlarged Board did not address the question whether oral proceedings by videoconference may be held without the consent of the parties in the absence of a period of general emergency. Nor did the order address the question whether oral proceedings by videoconference may be held without the consent of the parties in examination or opposition proceedings before the EPO’s departments of first instance.”
And this more restricted question was answered in the affirmative:
“During a general emergency impairing the parties’ possibilities to attend in-person oral proceedings at the EPO premises, the conduct of oral proceedings before the boards of appeal in the form of a videoconference is compatible with the EPC even 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 decision means the ‘hot potato’ and the uncertainty are still there. One wonders why the EBA, whose main task is to ensure the uniform application of the EPC, chose to restrict its judgment instead of grasping the opportunity to create clarity about this important issue. In its press release, the EBA said that the “reasons for the decision will be issued in writing in due course and will subsequently be publicly available in the decisions database of the Boards of Appeal”.
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June 24, 2025
DXThomas
I would not be as negative for the time being and would wait for the reasons. As I am an optimist, for the time being, I rather feel the glass is half-full rather than half-empty. It is clear that EPO’s management will be making any move in order to keep mandatory OP by ViCo as otherwise the New Normal cannot be implemented. What is however annoying is the recent tendency of the EBA to rewrite the questions so as to not answer the referred questions. This propensity should brought to an end so that it does not end up by sanctuarising “dynamic interpretations”. Dynamic interpretations can change with time and instead of giving legal certainty they increase legal uncertainty. The founders of the EPC wanted to help legal certainty, but this aim seems to have disappeared.
One More for the Road
Unfortunately the EBA´s decision on a restricted issue only might leave the suspicion that the Board actually had an opinion on the broader issue - as actually raised by the generic wording of new Article 15a RPBA - which would not have met the Office management´s obvious expectations and that it simply did not dare to confront the latter. One more blow at the Boards independence?
DXThomas
There is however another aspect which also plays an important role. According to Art 15a(3) RPBA20, when holding an OP by ViCo, or even on the premises, the deciding BA does not have to sit together at the same location. The problem at stake is thus broader and concerns as well Art 15a(3) RPBA20. Without mandatory OP by ViCo and the possibility of a BA to decide without sitting together, a similar measure cannot be put in place in the first instance. Without this double possibility, there is no New Normal! The problem is that it is difficult to find a proper basis in the EPC for this New Normal. This is a point of view which has been mentioned by two former VP1 in a publication of "Le Blog.du Droit Européen des Brevets” https://europeanpatentcaselaw.blogspot.com/2021/04/vers-une-nouvelle-normalite.html A “satisfactory” reply of the EBA in G 1/21 is thus of prime importance for the management of the EPO. Such a New Normal could however be established after amending the EPC according to Art 172, taking duly into account that Art 164(2) which provides that in case of conflict between Rules and EPC, the latter prevails. So the AC is, in principle, not free to amend the Rules at will. Last but not least, there is no trace of OP by ViCo, and even less in mandatory form, in the EPC and its Rules of Implementation. This makes things even more complicated. During the OP of 02.07., the president’s representatives claimed that it was possible to amend the EPC by secondary legislation as exemplified in G 3/19. This argument is neither convincing nor compelling, as there exists a proper mechanism to amend the EPC.
Anon Y. Mouse
Once upon a time I was told, by a person very much in the know with decades of experience within the European institutions, that part of the reason that CJEU judgments are often so brief and/or so impenetrable is that, in the absence of a tradition of allowing different judges to give dissenting opinions (or even opinions which agree with the conclusion but disagree as to the reasoning), any points which are not the consistent view of the majority of judges are excluded. Thus, the overall judgment reflects only the essentials of the points on which a majority of the panel could agree. This tends to make the decisions very fact-specific, and makes the rationale behind the decisions quite impenetrable, never mind establishing a clear test or broad principle that could be applied to future cases. I wonder whether something similar is at work in recent EBA decisions at the EPO, and in particular in this one. That the order is so notably limited to approving something which hardly anyone had questioned, when the discussion at the hearing and the questioning from the EBA members was so wide-ranging, makes me wonder whether the members of the EBA simply could not agree among themselves on how to address the broader points that were at stake.
Attentive Obsever
@AnonY.Mouse, When looking at Art 18(2) RPEBA the possibility of a dissenting opinion of a minority of members of a panel is foreseen. However the dissenting opinion will only be published if the majority agrees. Neither the names nor the extent of the minority will be published. When looking at Art 16(1) RPEBA only members of the panel may be participate in the deliberations, but other officers(?) can be present if authorized by the chair of the panel. I understand that the registrar might be present, but the wording does not exclude the presence of other members of the BA. As the present chair of the panel is a subordinate it cannot be excluded that the chairman’s arm might be twisted to accept the presence of more than the Registrar. In view of the history of the case anything could this happen. It is clear that with the original quatuor there was no surprise as to what the decision will be. The power of nuisance of the remaining duet is not be ignored, and the present order is probably the result of a compromise. We really have to wait for the reasons to know what is the real opinion of the EBA.