Oral proceedings at the EPO: videoconferencing as the “new normal” also at the Boards of Appeal?

Last November, the President of the European Patent Office (EPO) has decided that all oral proceedings before the Examining Divisions and Opposition Divisions (commonly referred to as “first instance proceedings”) are to be held by videoconference, unless a party requests an in-person hearing (European Patent Office (epo.org)). For such request, serious reasons must be provided, and the final decision is taken by the respective Division, without a possibility of appeal.

Now, the Boards of Appeal (“second instance”) have issued a communication announcing to lift COVID-19 measures at its premises (EPO – Oral proceedings before the Boards of Appeal – pandemic measures cease; oral proceedings by VICO still provided). The possibility of holding oral proceedings via videoconference will remain, and not only that: it will be at the discretion of the Board whether to hold the oral proceedings in person or not. According to the communication, videoconferencing contributes to reaching sustainable development goals of the United Nations (UN). We consider this as an invitation to use videoconference as the preferred format. Similar to the practice in first instance proceedings, a party may submit reasons in support of a particular format, but the final decision is at the discretion of the Board.

This development is consistent with the President’s decision, but in apparent contrast to Case law by the Enlarged Board of Appeal (EBoA; EPO – G 0001/21 (Oral proceedings by videoconference) of 16.7.2021). According to the EBoA, “a hearing in person is the optimum format or, to use a term well known in the field of European patent law, it is the gold standard. […] It is also the format that the legislator had in mind when drafting Article 116 EPC. Therefore, in-person hearings should be the default option. Parties can only be denied this option for good reasons.”

It will be interesting to see how reaching sustainable development goals is used as a case specific “good reason”, in particular where all persons taking part in the proceedings can reach the premises of the Boards of Appeal by train.