Zusammenfassung von EPC2000 Art 116 für die Entscheidung T0758/20 vom 23.11.2022

In T 758/20 the board decided of its own motion to hold oral proceedings by videoconference pursuant to Art. 15a(1) RPBA 2020. The oral proceedings were held by videoconference in November 2022 with the consent of the respondent (patent proprietor). The appellant (opponent) had not consented to that format. The board reasoned that from the wording "if the board considers it appropriate" in this provision, it was evident that the board had the discretion to decide whether to hold oral proceedings by videoconference. The provision did not set criteria to be applied when exercising this discretionary power. Nor did this provision require the consent of the parties. Regarding whether there were circumstances specific to the case that justified the decision not to hold the oral proceedings in person, the board explained that the COVID-19 pandemic was ongoing at the date of the oral proceedings and access restrictions were at that time still in place for the premises of the Boards of Appeal in Haar. Holding oral proceedings by videoconference had avoided the risk that a participant on quite short notice be barred from attending. The absence of general travel restrictions was not a clear indication that oral proceedings had to be held in person. The board also took into account the risk for the parties and the members of the board of being infected. Concerning the suitability of holding oral proceedings by videoconference in the case in hand, the board disagreed with the appellant's view that a discussion of the opposition division's allegations in the impugned decision would require an in-person hearing. The board found that it would be more appropriate to provide figures and sketches in advance of the oral proceedings instead of presenting them during the oral proceedings. Moreover, the Zoom software used for the videoconferences allowed for screen sharing, displaying figures and handmade sketches as well as for pointing to details using the mouse. Furthermore, it was possible to file figures and sketches by email to be distributed to the other participants of the oral proceedings. Moreover, the board did not interpret G 1/21 as meaning that it was for the party to choose the format of the oral proceedings. The decision on whether good reasons justified a deviation from the preference of a party to hold the oral proceedings in person was a discretionary decision of the board summoning it to the oral proceedings. Furthermore, the board clarified that the order in G 1/21 could not be read as restricting the possibility of summoning for oral proceedings by videoconference contrary to the will of one party to only when there is a general emergency. The order did not exclude that there were other circumstances specific to the case that justified the decision not to hold the oral proceedings in person. The board concluded that, in the case at issue, the three criteria mentioned in points 47 to 50 of decision G 1/21 were met. Hence the board saw no conflict with G 1/21. Irrespective of this, the board also found that nowadays oral proceedings held by videoconference were often equivalent to a hearing in person. This applied to the current case when using the available videoconference technology, as the case had involved no particular complexities and there had been no limitations on the interaction between the parties and the board or on the opportunity for the parties to argue their case. Therefore, the board concluded that oral proceedings by videoconference were in this case not only suitable but also represented an equivalent alternative to in-person oral proceedings. Finally, the board refused the request by the appellant for referral under Art. 112(1)(a) EPC, since it did not see any deviation from the decision G 1/21; furthermore, it did not consider the question to be essential for it to reach a decision in the case at issue and had no doubt that it had discretion to decide to hold oral proceedings by videoconference, even without the consent of the appellant.