c) Considerations set out in G 1/21 – not addressed 

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

In T 1067/21 the board decided to hold oral proceedings by videoconference without the appellant 2's (opponent's) consent. The board referred to Art. 15a RPBA and indicated that this article provided the board with discretion to hold oral proceedings by videoconference. The board did not refer to the reasoning and criteria of G 1/21 date: 2021-07-16.

Similarly, the board in T 331/22, referring to Art. 15a RPBA, found that whether oral proceedings are held in person was at the discretion of the board. In the case at hand, the oral proceedings initially scheduled as an in-person hearing had been postponed at the request of the appellant. The board noted that, since finding a new date at short notice was easier for a videoconference than for an in-person hearing, this aspect was of particular importance in this case because various participants from different locations had been announced to attend the hearing. Therefore, the board exercised its discretion to conduct the oral proceedings by videoconference.

The board in T 744/23 also considered it appropriate to hold the oral proceedings by videoconference pursuant to Art. 15a RPBA. It reasoned that this would be the most sustainable format, and no particular reasons had been put forward nor had any been apparent as to why this would not be appropriate in the case in hand. While the board did not explicitly address the considerations set out in G 1/21 date: 2021-07-16, it referred thereto when stating that the choice of format was a discretionary procedural decision. According to the board, this decision had to be made ex officio in advance in accordance with the criteria of Art. 15a(1) RPBA ("appropriateness").

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

In T 3277/19 oral proceedings were held in person despite the parties' requests for oral proceedings by videoconference. The board's reasoning included that the subject-matter of the proceedings involved complex explanations of the duct at issue's geometry in relation to the visualisation of several virtual planes and intersections, which made in-person proceedings the appropriate format in this case (see also T 2075/21). The board also noted that while it always had the possibility to alter the format to a videoconference at short notice if a party were restricted in travelling, the appellant had not shown that it had been restricted in this regard.

Referring to its discretion under Art. 15a(1) RPBA, the board in T 1497/23 decided not to grant the request made by the respondent (patent proprietor) that the oral proceedings be held by videoconference, because it did not consider it appropriate to do so. As it had previously done in similar cases, the board first assessed the complexity of the issues to be addressed in the case in hand, and concluded, for example, that the use of a whiteboard might be necessary. For reasons similar to those set out in T 2432/19, point 1.15 of the Reasons, the board considered that the options available in a videoconference for presenting graphical information were not equivalent to what a physical whiteboard offered and could have added to the complexity of the proceedings, especially given the need for interpreters.

Similarly in T 1847/22 the board, referring to its discretion under Art. 15a(1) RPBA, recalled that it had stated in its preliminary opinion that the present case had required several geometrical discussions, and that these discussions might well require drawing and mutual completion of the drawings of the counterpart. The parties had not presented any further arguments on this matter such that the decision to hold the oral proceedings on the EPO premises was maintained despite earlier requests of the proprietor and opponent 2 respectively to hold oral proceedings by videoconference.