e) Applicability of considerations set out in G 1/21 to first-instance proceedings and to hearing a witness? 

In T 423/22 the opposition division had heard witness M by videoconference without the consent of the appellant (patent proprietor). As to the appellant's argument that it had not been able to observe the witness's body language during their hearing, the board noted inter alia that it is the deciding body's responsibility to judge the personal credibility of a witness and the plausibility of its statement. With regard to hearing a witness by videoconference, the board added its general observation that most of the body language can be perceived in the camera-section visible to the other participants of the videoconference and facial reactions can often be seen in even greater detail when choosing speaker-view on a screen. Even if part of the body language could not be seen, this drawback could never affect a party's right to be present and to put questions to the witness to such an extent that its right to be heard is violated. The board also noted that its considerations did not contradict G 1/21 date: 2021-07-16. In the board's view, it could not be assumed that, under the current technical possibilities, the Enlarged Board would have considered there to be a general obstacle against holding a witness hearing by videoconference. Whether G 1/21 date: 2021-07-16 required a general emergency in order to hear a witness by videoconference, however, did not have to be addressed since, according to the board, G 1/21 date: 2021-07-16 had not concerned oral proceedings in opposition proceedings nor taking of evidence, but instead had been limited to oral proceedings in appeal proceedings. For more information on taking evidence by videoconference, see chapters III.B.2.7.4 and III.G.3.1.8.

In T 1523/23, oral proceedings before the opposition division had been held by videoconference despite the opponent's (appellant's) request that they be held in person. Notwithstanding the opponent's (appellant's) respective allegation, the board did not consider that there had been an infringement of the opponent's right to be heard. Referring to G 1/21 date: 2021-07-16, the board reasoned that oral proceedings in the form of a videoconference are oral proceedings within the meaning of Art. 116 EPC. In particular, neither a general emergency, nor travel restrictions, nor the consent of the parties were regarded as prerequisites. The board held that it could not discern, and the opponent had not demonstrated, how the opponent's right to be heard had been infringed merely because a format of oral proceedings, which as such complied with Art. 113 and 116 EPC as well as with the right to fair proceedings, had been imposed against its will. No such conclusion could be derived from decision G 1/21 date: 2021-07-16.