This is the question currently occupying the EPO’s Enlarged Board of Appeal in case G 1/21 (see C&F press release of April 26, 2021). On May 17, 2021, the Enlarged Board of Appeal issued an interlocutory decision addressing the challenges it had received on the grounds of suspected partiality: In the Enlarged Board of Appeal’s opinion, the concerns regarding the suspected partiality are indeed justified, since the President of the Boards of Appeal served both as the Chairperson of the Enlarged Board of Appeal deciding the case and at the same time is the administrative head of the Boards of Appeal. He could therefore favor compulsory video conferences for the sole reason of not wanting to cast doubt on his own past actions. The question of whether holding video conferences without the consent of the parties is compatible with Article 116 of the European Patent Convention (EPC) already seemed to have been answered in the affirmative by him when proposing new Article 15a of the Rules of Procedure and issuing accompanying communications allowing for compulsory videoproceedings. A similar argument had been put forward in several amicus curiae briefs. Cohausz & Florack (C&F), together with other renowned German patent firms, has also taken a stand in this form.
The Enlarged Board of Appeal’s interlocutory decision involves replacing the Chairperson and one other member. However, two other persons will remain on the Board, although they are also members of the Boards of Appeal. In C&F’s opinion, these measures are not very consistent: “To avoid accusations of bias, a complete replacement of the Board of Appeal members would have been advisable and sensible,” says Gottfried Schüll, patent attorney and partner at C&F.
The hearing before the Enlarged Board of Appeal will be held on May 28, 2021. Here, a final decision will be made on the question of whether compulsory hearings by videoconference without the consent of the parties is lawful.
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