24 March 2021
With its decision of 12 March 2021, a Technical Board of Appeal of the EPO has made a referral to the Enlarged Board of Appeal seeking to clarify whether, in view of Article 116(1) EPC, oral proceedings may be conducted by videoconference (VICO) without all parties' consent. The referral concerns appeal proceedings, but also extends to oral proceedings by VICO before examining and opposition divisions.
Following a careful weighing up of the impact for legal certainty and access to justice, the President of the EPO has decided that during pendency of the referral oral proceedings before examining and opposition divisions will continue to be held by VICO as under current practice, i.e. without requiring explicit agreement of the parties.
The conduct of oral proceedings by VICO in examination and opposition was introduced in order to ensure the functioning of the EPO in the context of COVID-19 with regard to its task to take decisions on European patent applications and oppositions filed against granted European patents which may then be appealed before the EPO's independent judiciary. Several hundreds of oral proceedings take place each month in EPO examination and opposition proceedings. In 2020, before introduction of VICO oral proceedings by default, the coronavirus pandemic had a significant negative impact on legal certainty for parties and the public since almost none of the scheduled oral proceedings could take place in examination and opposition. Against this background, avoiding a further delay in access to justice is a priority.
The Office is awaiting the decision of the Enlarged Board of Appeal and will immediately implement its findings in the conduct of oral proceedings before examining and opposition divisions.