Zusammenfassung von EPC2000 Art 116 für die Entscheidung T1158/20 vom 22.11.2022

In T 1158/20, the first point of the board's Catchword reads as follows: "Pursuant to Art. 15a(1) RPBA 2020 the boards have a discretionary power to hold oral proceedings by videoconference without the consent of all parties. When exercising this discretion, the board must primarily assess whether the case is suitable to be dealt with by videoconference and/or whether there are reasons that require holding oral proceedings in person. Such reasons may be seen in the complexity of the case or a need to inspect models." In the case at issue, the oral proceedings were held by videoconference on 22 November 2022 with the consent of the respondent (patent proprietor). The appellant (opponent) had not consented to that format. The board decided of its own motion to hold oral proceedings by videoconference pursuant to Art. 15a(1) RPBA 2020. From the wording "if the board considers it appropriate" in this provision, it was evident that the board had discretion to decide whether to hold oral proceedings by videoconference. The provision does not explicitly set criteria to be applied when exercising this discretionary power. Nor does this provision require the consent of the parties. Before deciding the format of the oral proceedings, the board informed the parties it intended to hold the oral proceedings by videoconference in view of the increasing number of COVID-19 infections and because the case appeared suitable. The appellant disagreed. The board stated that despite the appellant's allegation to the contrary, the COVID-19 pandemic was ongoing at that date; there were still restrictions in the premises of the boards in Haar. Videoconference avoided the risk that a participant on quite short notice be barred from attending. The absence of travel restrictions was not a clear indication that oral proceedings must be held in person. The board still had the discretion to decide on the format of the oral proceedings. The board took the view that it was not possible to objectively define a threshold for the number of infections (or for any other parameter). Contrary to the appellant's suggestion, it could not be expected of the respondent's representative to find a colleague of the same firm located in Munich when the representative located in London was available to participate by videoconference. As regards the argument that the same board in T 996/20 did not grant oral proceedings by videoconference in the absence of consent of all parties (held in person on 02 November 2022), such decision was a discretionary one. In response to the appellant's argument that filing further auxiliary requests during oral proceedings would not be possible during a videoconference, the board noted that were the patent proprietor to submit further auxiliary requests, this could be accommodated by email filing, using a dedicated email address, during the videoconference. In fact, none of the parties experienced problems using this procedure. Since all pieces of relevant prior art were printed documents available on EPO databases and no particular difficulties were apparent, such as particular complexities or models to be inspected during the oral proceedings, the board saw no reason why a videoconference was not suitable. The board further saw no conflict with G 1/21 (points 47-50 of the Reasons). And irrespective of this, the board also considered whether videoconference could be considered an equivalent alternative to in-person (stated to be the gold standard in G 1/21, point 45 of the Reasons). Firstly, the scope of the referral was restricted and G 1/21 was issued when the boards had little experience with videoconferencing (see point 46 "at this point in time...not provide same level"). Since then, the situation had changed; boards and parties had gained extensive experience such that holding oral proceedings by videoconference was no longer as far from the gold standard as it was when decision G 1/21 was taken. In the board's view, nowadays videoconference was often equivalent to a hearing in person (see Catchword 2.). In conclusion even in view of G 1/21, videoconference was in this case not only suitable but also represented an equivalent alternative to in-person oral proceedings.