b) G 1/21 – framework for the exercise of the discretionary power under Article 15a RPBA 

(i) Oral proceedings held in person without a party's consent 

In T 2432/19 oral proceedings took place in person in April 2023 despite the appellant's (patent proprietor's) request that the oral proceedings be held by videoconference. The board stressed that while it was evident from Art. 15a(1) RPBA that the board had discretion to decide whether to hold oral proceedings by videoconference, G 1/21 date: 2021-07-16 put certain limits on how this discretion was to be exercised. The board did not share the view expressed in T 618/21 with regard to Art. 15a RPBA 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 date: 2021-07-16 had established general criteria 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 (see also T 745/23). It also followed from G 1/21 date: 2021-07-16 that parties did not have a right to a format that had deficiencies, i.e. parties could not force boards to hold oral proceedings by videoconference instead of in person. The board cited G 1/21 date: 2021-07-16, according to which in-person hearings are the "gold standard". Unlike the boards in T 758/20 and T 618/21, the board held that the situation had not changed since G 1/21 date: 2021-07-16. 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 date: 2021-07-16. Furthermore, no significant improvements that had increased "immediacy" to the level of in-person hearings could be recognised.

In T 1171/20 the oral proceedings in May 2023 were held in person, contrary to what the opponent (appellant) – without giving any reasons – had requested. The board stressed that the Enlarged Board had looked beyond a general emergency situation in G 1/21 date: 2021-07-16. The board did not share the view taken in T 618/21 that Art. 15a RPBA had "to be regarded as a follow-up provision to G 1/21 date: 2021-07-16". It therefore could not see how Art. 15a RPBA could restrict the Enlarged Board's findings in G 1/21 date: 2021-07-16 (see T 2432/19). It endorsed the finding in T 2432/19 that the circumstances in which in-person oral proceedings might be preferable were ones the board too could take into account when exercising its discretion under Art. 15a(1) RPBA. Therefore, as a general rule, the board could also decide to hold oral proceedings in person at its own discretion and against the parties' wishes (see T 2432/19).

In T 489/20 oral proceedings were held in person without the consent of the appellant and respondent-opponent 4. The board reasoned that according to Art. 15a(1) RPBA it may decide to hold oral proceedings by videoconference if it considered it appropriate to do so. In view of respondent-opponent 2 and 3's disapproval to hold the oral proceedings by videoconference, and in the absence of any particular circumstances as mentioned in G 1/21 date: 2021-07-16, the board did not consider it appropriate to hold the oral proceedings by videoconference.

Referring to G 1/21 date: 2021-07-16, the board in T 274/20 reaffirmed that one party's request for a videoconference could outweigh the other party's right to oral proceedings in the optimal in-person format only if particularly well justified. The Enlarged Board had given as an example limitations and impairments preventing a party from attending oral proceedings in person on the EPO premises. As there were no such limitations and impairments in the case in hand, the board held the oral proceedings in person.

In T 2609/22 the board found that the appellant-opponent's request to conduct the oral proceedings as a videoconference was not only a request to be allowed to participate via videoconference but also meant that the appellant-patent proprietor would need to participate in the same way. The appellant-patent proprietor objected to this request. The board referred to G 1/21 date: 2021-07-16 and recalled that, where a party requests oral proceedings in person, there ought to be circumstances specific to the case which justify a different format. The reasons advanced by the appellant-opponent (contributing towards reaching the United Nations Sustainable Development Goals) were not based on circumstances specific to the case. Hence, the board could not see any good reason to force the proprietor to attend the oral proceedings via videoconference.

(ii) Oral proceedings held by videoconference without a party's consent 

In T 745/23 the oral proceedings were held by videoconference despite the appellant’s request to hold them in person. The board reasoned that Art. 15a RPBA provided the board with the discretion to decide to hold oral proceedings by videoconference and this provision's scope was not limited to a pandemic situation. Furthermore, it interpreted the discretionary power under Art. 15a RPBA within the framework of G 1/21 date: 2021-07-16 and the latter had not excluded videoconference oral proceedings a priori. The board pointed out that it exercises its discretion in view of the particular circumstances of the case and of the reasons provided by each party in support of their opposing requests as to the format, including the reasons why the party not consenting to a videoconference considers that videoconference, in the case in hand, is not suitable or why the party is otherwise disadvantaged. Even in cases interpreting Art. 15a RPBA within the teaching of G 1/21 date: 2021-07-16, the boards nevertheless provide justifications for holding oral proceedings in person in the same way as is done for holding them by videoconference.

(iii) Oral proceedings held in mixed mode with parties' consent 

In T 1501/20 the oral proceedings were held in a "mixed-mode" format. On this point, the board observed that the decision in G 1/21 date: 2021-07-16 imposed certain limits on the exercise of discretion under Art. 15a(1) RPBA. In doing so, the board followed the decision in T 2432/19, according to which Art. 15a(1) RPBA was to be interpreted restrictively in view of the decision in G 1/21 date: 2021-07-16. Art. 15a(1) RPBA thus offered no legal basis for holding oral proceedings as a videoconference against the wishes of one of the parties when there was no general emergency impairing the parties' ability to attend in-person oral proceedings on the EPO premises. The board also made it clear that it did not share the view taken in T 618/21 that Art. 15a RPBA had "to be regarded a follow-up provision to G 1/21 date: 2021-07-16".

In accordance with the auxiliary request of both the appellant and the respondent in T 939/23, the board decided to hold the oral proceedings in the mixed-mode format. It considered offering each party the opportunity to be heard in the oral proceedings' format of their choice the determining criterion in the case in hand. By holding the oral proceedings in hybrid form, each of the parties had the opportunity to attend in the format of their choice. By adhering to each party's respective requests and preferences, the principle of equal treatment was respected. It did not follow from G 1/21 date: 2021-07-16 that the right to be heard or the right to fair proceedings could not be respected when oral proceedings were held by videoconference. This conclusion was applicable mutatis mutandis to a situation where one of the parties participated remotely in mixed-mode oral proceedings.

(iv) Oral proceedings held in mixed mode without a party's consent 

In T 385/23 the oral proceedings were held in the mixed-mode format, following the summons to in-person oral proceedings, the patent proprietor's request to hold oral proceedings by videoconference, the opponent's request to hold them in person and its auxiliary request to hold them in mixed-mode format. The board referred to its discretion under Art. 15a RPBA as well as to decision G 1/21 date: 2021-07-16 in which the Enlarged Board stated that it cannot be concluded that the right to be heard or the right to fair proceedings could not be respected when oral proceedings were held by videoconference. The board considered this conclusion equally applicable to where one of the parties participated remotely in mixed-mode oral proceedings. By conducting oral proceedings in mixed-mode format, both parties were given the opportunity to participate in accordance with their preferences (see T 939/23).