In the case G1/21 the Enlarged Board of Appeal of the European Patent Office (EPO) had to answer the following referral question under Article 112(1) a) EPC:

“Is the conduct of oral proceedings in the form of a videoconference compatible with the right to oral proceedings enshrined in Article 116(1) EPC if not all parties to the proceedings have given their consent to the conduct of oral proceedings in the form of a videoconference?”

The Enlarged Board of Appeal has now answered this question with “YES” and advocates the conduct of oral hearings by videoconference (VICO) during the pandemic.

According to the order of the decision of July 16, 2021, in the event of a general emergency impairing the ability of the parties to attend oral proceedings in person 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 parties to the proceedings have given their consent to this form. 

The Enlarged Board of Appeal did not address the question whether oral proceedings can be conducted by VICO without the consent of the parties if there is no general emergency. Furthermore, the decision also does not address the question of whether oral proceedings by VICO can be conducted without the consent of the parties in examination or opposition proceedings before the first-instance divisions of the EPO. Thus, the decision of the Enlarged Board of Appeal does not directly apply to oral proceedings by VICO before the examination and opposition divisions.

In view of this and the fact that the pandemic situation continues in the EPO contracting states and worldwide, the EPO will for the time being continue to conduct oral proceedings by VICO in accordance with its current practice. To what extent the situation will change once the pandemic is over remains to be seen.

The reasoned decision is still pending.