3.1.8 Means of taking evidence by videoconference

In T 423/22 the opposition division had heard witness M by videoconference without the consent of the appellant (patent proprietor). The board considered that Art. 117(1)(d) EPC and R. 117 EPC provided a legal basis for hearing a witness by videoconference. The board furthermore emphasised that hearing the witness by videoconference in the case in hand had not infringed the appellant's right to be heard and it had not substantially limited the interaction between the opposition division, the parties and the witness compared to hearing a witness in the courtroom. As to the appellant's argument that it had not been able to observe the witness's body language during their testimony, and therefore it had been deprived of the opportunity to objectively judge their credibility, the board noted the following: Firstly, it was the deciding body's responsibility, not the parties', to judge the personal credibility of a witness and the plausibility of a witness's statement. It was up to the relevant department to decide which possible way to hear a witness. The parties did not play a central role in this process. They did have, according to R. 119(3) EPC, the right to attend an investigation and they could put relevant questions to the testifying witness. Secondly, the credibility of a witness was not determined largely by their body language. On the contrary, the credibility of a witness depended primarily on the plausibility and conclusiveness of their testimony and the absence of contradictions (see also Catchword).

Further, the board also considered that whether G 1/21 date: 2021-07-16 required a general emergency in order to hear a witness by videoconference did not have to be addressed since G 1/21 date: 2021-07-16 did not concern oral proceedings in opposition proceedings nor the taking of evidence, but instead was limited to oral proceedings in appeal proceedings. Finally, the board in T 423/22 held that neither the "importance" of the prior use nor the fact that the outcome of the case hinged on the question of whether this prior use was public could constitute such a "serious reason". The appellant had further alleged at the appeal stage that the witness being an employee of the opponent and being located in the opponent's office during their hearing constituted a special reason. However, this had not been raised during the opposition proceedings. Furthermore, the minutes of the taking of evidence showed that the opposition division had made sure that the witness was sitting alone in the room. The mere fact that the witness was an employee of the opponent did not necessarily cast any doubts on the witness's reliability that were serious enough for a hearing by videoconference to be ruled out.

In T 1604/22 , with regard to a prior use, the appellant (patent proprietor) objected that it had been inappropriate to inspect the CD and to hear the two witnesses in oral proceedings held by videoconference before the opposition division. The board stated that the fact that the inspection of the CD was carried out by videoconference did not prejudice the proper inspection of that content. The minutes showed that the parties were able to follow the inspection in real time during the videoconference. The fact that some of the files were corrupted and therefore could not be opened was not related to the format of the oral proceedings. Also, the hearings of the two witnesses were not compromised by the videoconference format. The minutes of both hearings showed that precautions were taken to ensure that the witnesses were alone in front of the camera and that they had no document in front of them from which to read their statements. Furthermore, according to the minutes, the parties were provided with the draft minutes of the taking of evidence and were given the opportunity to comment on them already during the oral proceedings. The board concluded that the taking of evidence by videoconference was not inappropriate and did not diminish the probative value of the evidence taken.

In T 2011/21 the child safety seat prior use was inspected remotely by the opposition division; Screenshots were attached to the protocol of inspection. The appellant (opponent) contested the correctness of the inspection per videoconference. The board considered that the opposition division erred in not granting the opponent's request for giving of evidence by inspection be made in-presence, in particular because the object to be inspected was a complex three-dimensional item. This error, however, did not constitute a substantial procedural violation, but an error of judgment resulting from an erroneous interpretation of a term of claim 1 by the division; an in-person inspection would not have led to a different result.