EPO's Enlarged Board of Appeal to review new compulsory videoconferencing practice

Düsseldorf, 16 February 2021 - Following the decision of the European Patent Office (EPO) to hold oral proceedings before the Boards of Appeal as videoconferences even without the consent of the parties (see C&F press release of 22 December 2020), opposition is now mounting: Board of Appeal 3.5.02 of the EPO has announced that it will ask the Enlarged Board of Appeal to review this practice (T1807/15, EP04758381.0). This could result in oral proceedings before the Boards of Appeal no longer being held by videoconference or at least being suspended until a decision has been reached by the Enlarged Board of Appeal or until face-to-face hearings are once again possible without restrictions.

On November 10, 2020, the EPO had decided that oral proceedings in opposition proceedings of the first instance may be held by video conference from January 4, 2021, even without the consent of the parties. In addition, the EPO Boards of Appeal announced on December 15, 2020, that this will also apply to oral proceedings in appeal proceedings from January 1, 2021. This practice is to be codified in a new Article (15a) in the Rules of Procedure of the Boards of Appeal. The EPO Administrative Council will decide on this on March 23, 2021. According to the Boards of Appeal Committee, however, this new provision merely codifies an already existing possibility: Accordingly, the boards could already waive the requirement to obtain the consent of the parties to hold video conferences.

"We welcome that the practice of compulsory videohearings allowed by the EPO and the Boards of Appeal will now be reviewed by the EPO's highest appeal instance," says Mathias Karlhuber, patent attorney and partner at Cohausz & Florack (C&F). "Videohearings should require the consent of the parties involved." According to the firm's assessment, it is questionable whether there is even a proper legal basis in the European Patent Convention for videohearings, let alone to make them compulsory. "The planned referral to the Enlarged Board therefore comes as no surprise to us, but hopefully still in time before the decision of the EPO Administrative Council," says Dr. Natalie Kirchhofer, patent attorney and partner at C&F.

The holding of video hearings against the will of the parties had already met great criticism before. In view of the announced referral to the Enlarged Board of Appeal, C&F now expects that and encourages the legal community to take a clear position - for example in the form of amicus curiae briefs.

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