Zusammenfassung von EPC2000 Art 116 für die Entscheidung T2432/19 vom 25.04.2023

In T 2432/19, after the board had summoned the parties to oral proceedings at the EPO premises, the appellant (patent proprietor) requested that the oral proceedings be held by videoconference but did not give any reasons for this request. The respondent (opponent) invoked no reasons against holding oral proceedings by videoconference. Oral proceedings took place in person in April 2023. The board stressed that while it was evident from Art. 15a(1) RPBA 2020 that the board had the discretion to decide whether to hold oral proceedings by videoconference, the decision G 1/21 put certain limits on how this discretion was to be exercised. The board found that the Enlarged Board had set out in G 1/21 the conditions under which a party's request for in-person proceedings may be denied. It had set out principles which followed the spirit and purpose of the Convention (Art. 23 RPBA 2020) and which had to therefore be taken into account when exercising discretion under Art. 15a RPBA 2020. The fact that Art. 15a RPBA 2020 had not been referred to specifically was of no relevance. While G 1/21 was to a large degree directed to the situation of a general emergency, the Enlarged Board's basic reasoning used in arriving at its final conclusion was quite general and unrelated to any general emergency considerations. The board did not share the view expressed in T 618/21 with regard to Art. 15a RPBA 2020 that the exercise of discretion in deciding on the format of the oral proceedings was to be based on the criterion of the "appropriateness" of the format only. According to the board, G 1/21 had established general criteria which needed to be taken into account for the denial of a request for in-person oral proceedings, which applied not only to a situation of general emergency, but were valid also in non-emergency times. The board recalled that G 1/21 stated that in-person oral proceedings were the optimum format and that videoconferences - at least according to the then state of technology - did not meet this standard, i.e. were not equivalent to in-person oral proceedings. The board stressed that these statements held true regardless of the existence of an emergency situation, i.e. even in 'normal times'. The board considered this to be the ratio decidendi underlying G 1/21, the validity of which was not limited to any emergency situation. The board concluded that the ratio decidendi underlying G 1/21, at least with regard to a party's request for in-person oral proceedings, could not be simply assigned to situations of general emergency but were instead generally valid. The board pointed out that even in the circumstances of a general emergency, the Enlarged Board had still imposed strict conditions on the possibility of denying a party's wish to hold oral proceedings in-person. A fortiori, it was therefore hardly justifiable that less strict requirements could apply for denying parties in-person oral proceedings in times when there was no general emergency. Since videoconferences, at least according to current technology, could only provide a suboptimal form of communication, parties had a right to the optimum format for oral proceedings, i.e. in-person oral proceedings, that could only be denied under very limited conditions. It also followed from G 1/21 that parties did not have a right to a format that had deficiencies, i.e. parties could not force boards to conduct videoconferences instead of in-person oral proceedings. The board cited G 1/21, in which a hearing in person was held to be the "gold standard". The board concluded that communicating via videoconference could not, at least for the time being, be put on the same level as communicating in person. The board could not recognise any improvements that could be said to provide the level of communication which was possible when all participants were physically present in the same room. Unlike the boards in T 758/20 and T 618/21, the board in the present case held that the situation had not changed since the issue of G 1/21. At the time of issuing the present decision, the parties relied on the same kind of hardware and software as were available at the time of G 1/21. Furthermore, no significant improvements that had increased "immediacy" to the level of in-person hearings could be recognised. In the present case, and despite the party's request, the board did not change the format of the oral proceedings, which remained as summoned. The board reasoned among others with the complexity and the circumstances of the case; experience of appeal cases in the technical field of the case in question had also shown that a party wishing to explain functional effects of structural features could often do this more easily by use of the flip chart, gradually building up features whilst explaining them in a dynamic situation of use, and of course allowing the same sketches to be used by the opposing party(ies).