Comment on oral hearings at the EPO: Leading patent attorney firms consider compulsory video conferences unlawful

Düsseldorf, April 26, 2021 – The question as to whether oral hearings at the European Patent Office (EPO) may be held by video conference without the consent of the parties is still preoccupying the legal community (see C&F Press Release of March 24, 2021). The Enlarged Board of Appeal, the highest court of the EPO, has now scheduled a hearing on the matter (G 1/21). According to the Rules of Procedure of the Enlarged Board of Appeal (Article 10), third parties may submit comments beforehand.

“We believe that, by making video conferences compulsory, the EPO is not respecting the established standard for oral hearings in the contracting states and is thereby granting itself authorities at constitutional level,” says Gottfried Schüll, patent attorney and partner at C&F.

Along with other renowned German patent attorney firms, C&F has filed a comment in the form of an amicus curiae brief. Prof. Dr. Siegfried Broß, former judge in the patent senate of the Federal Court of Justice (Bundesgerichtshof) and Federal Constitutional Court (Bundesverfassungsgericht), was brought on board as an expert. He concludes that, against the backdrop of the European Convention on Human Rights and general principles of the rule of law, it is not lawful to make oral hearings by video conference compulsory for the parties involved. However, oral hearings via video conference should be possible if the parties agree, according to the expert opinion.

“Compared to a face-to-face meeting, any communication via technical media is a step backwards. The decision to accept this must be left to the parties,” says Mathias Karlhuber, patent attorney and partner at C&F.

The hearing before the Enlarged Board of Appeal will take place on May 28, 2021 – as a video conference in line with current EPO practice.

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