16 July 2021
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Today, the Enlarged Board of Appeal, the highest level of independent judicial authority at the European Patent Office (EPO), has decided on referral G 1/21 concerning the compliance of oral proceedings by videoconference (VICO) with the European Patent Convention (EPC). The decision was taken after a public hearing held before the Enlarged Board on 2 July 2021.
According to the order of the decision, during a general emergency impairing the parties’ possibilities to attend in-person oral proceedings at the EPO premises, the conduct of oral proceedings before the boards of appeal in the form of a VICO is compatible with the EPC even if not all of the parties to the proceedings have given their consent to this form.
In its order the Enlarged Board did not address the question whether oral proceedings by videoconference may be held without the consent of the parties in the absence of a period of general emergency. Nor did the order address the question whether oral proceedings by videoconference may be held without the consent of the parties in examination or opposition proceedings before the EPO’s departments of first instance. The Enlarged Board’s order therefore does not apply directly to oral proceedings by VICO before examining and opposition divisions, nor, by analogy, to the Legal Division or the Receiving Section. It does not apply, either, to any situation where there is no general emergency. In view of this, and given that the pandemic situation in the EPO Contracting States and worldwide still persists, the Office will continue with the conduct of oral proceedings by VICO in accordance with its present practice.
The Enlarged Board has announced that the reasoned decision will be issued as soon as possible. Once available, the Office will carefully analyse the reasoning to assess any potential indirect implications on oral proceedings held by VICO before the EPO’s departments of first instance.