8.3.3 Case law concerning oral proceedings held after the end of pandemic measures at the Boards of Appeal
(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 which applied not only to a situation of general emergency, but were valid also in non-emergency times. 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).
(ii) 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(1) RPBA had "to be regarded a follow-up provision to G 1/21 date: 2021-07-16".
- T 0745/23
In case T 0745/23 the board had summoned the parties to oral proceedings on the EPO premises. The respondent had requested that the oral proceedings be held by videoconference. The appellant had requested, in response, that the oral proceedings be held in person, or, alternatively, that the board refer to the Enlarged Board the following questions:.
"1. Is the conduct of oral proceedings as a videoconference in appeal proceedings outside a general emergency situation without the consent of the parties in accordance with the provisions of the EPC.
2. If yes, on which criteria should the discretion be exercised if a Board of Appeal decides on its own motion to hold oral proceedings as a videoconference pursuant to Art. 15a(1) RPBA against the request of a party?.
In the communication under Art. 15(1) RPBA, the board had found the case in hand suitable for being heard by videoconference. The appellant had not responded to this communication, and hence, according to the board, had not objected to the board’s intention to grant the respondent’s request for a videoconference. Therefore, the board had changed the venue of the oral proceedings to videoconference.
At the oral proceedings, the appellant argued that Art. 15a RPBA did not define the criteria for exercising the board’s discretion. This gave rise to different practices and legal uncertainty. Since, according to G 1/21, oral proceedings in person were the gold standard, there could be doubt as to whether Art. 15a RPBA was actually in line with the EPC.
The board disagreed. Art. 15a RPBA provided the board with the discretion to decide to hold oral proceedings pursuant to Art. 116 EPC by videoconference if the board considered it appropriate to do so, either upon a party's request or of its own motion. Its scope was general and not limited to a pandemic situation. In G 1/21, the Enlarged Board had expressly acknowledged that oral proceedings in the form of a videoconference were oral proceedings within the meaning of Art. 116 EPC. The board failed to see how Art. 15a RPBA as such violated any EPC provisions governing the fair conduct of proceedings and the right to be heard.
Furthermore, the board stated that it interpreted the discretionary power set out in Art. 15a RPBA within the framework of decision G 1/21. This decision had not excluded videoconference oral proceedings a priori, but had set certain limitations and restrictions, especially when a party did not give its consent. The board exercised 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. Thus, also the party not consenting to a videoconference should provide some reasons as to why it considered that videoconference, in the case in hand, was not suitable or why the party was otherwise disadvantaged. In the case in hand, the appellant, however, had not submitted any objective or subjective reason why the case in hand should not be heard by videoconference. In the absence of any further submissions by the appellant regarding the format of the oral proceedings, the board had had no reason to (again) change the format of the oral proceedings.
The board rejected the appellant’s request for referral. The first question proposed for referral had already been answered by the Enlarged Board in section C.5 of G 1/21. This section undoubtedly had a general character, despite the judgement essentially being limited to the pandemic (as also acknowledged in T 2432/19). The board held that in the case in hand, it failed to identify a departure from the teaching of G 1/21, and thus a need to (again) refer the first question in order to decide the present case. The posed question thus did not warrant a referral, which would otherwise be of theoretical interest only.
With regard to the second question proposed for referral, the board found that any answer to it depended on the specific case and providing anything more than general instructions would risk compromising the principle of judicial discretion. The board held that, for this reason alone, it could not be regarded as a point of law suitable for being referred to the Enlarged Board.