Almost all opposition and appeal cases that progress to a final decision at the EPO will involve oral proceedings where the parties are provided with the opportunity to argue their case, such as based on the latest set of claim amendments, or prior art cited, or European patent jurisprudence. Going back 10 years or more, oral proceedings were more rare during examination at the EPO. However in recent years, especially in some areas of technology such as computer-implemented inventions, it is increasingly common for the examination process to routinely involve a response to a search report, a single response to an examination office action, and then be followed by a summons to oral proceedings.

It has been possible to request that oral proceedings be conducted by video for many years. However this video option was used by only some applicants and was often rejected by the EPO themselves. With the coming of the covid pandemic, oral proceedings were shifted to video only rather than in-person at the premises of the EPO. Video oral proceedings may be highly beneficial in many cases by reducing travel time, travel costs and the associated environmental impact. There are however other cases which involve high commercial value, or particular technical complexity, or large numbers of parties using different procedural languages, where in-person oral proceedings are preferable.

Earlier this year the EPO Enlarged Board of Appeal was asked to decide on the question of whether oral proceedings may be conducted by video instead of in-person even without the consent of a party involved. Practically all commentators accept that oral proceedings by video is a reasonable solution during the covid pandemic. The question of whether video oral proceedings should be forced on a party after the pandemic has passed and we have returned to other regular business meetings in person has been much debated. The full decision of the Enlarged Board of Appeal in G1/21 has now been published.

The Enlarged Board was satisfied that oral proceedings by video do meet the literal requirements of what might constitute ‘oral proceedings’ as defined in Article 116 of the EPC. Further the Enlarged Board of Appeal considered from a strict point of view that video oral proceedings do not impair a party’s right to be heard or right to fair proceedings.

However the Enlarged Board held that video oral proceedings are not exactly the same as communicating in person. The limitations of video technology mean that video oral proceedings are suboptimal. In particular video oral proceedings do not provide the same level of communication possibilities as in-person oral proceedings. Because video oral proceedings are less direct and are subject to limitations, in-person oral proceedings are the optimum format. The Enlarged Board has clarified that in-person oral proceedings is the ‘gold standard’, and should be the default option.

The choice of format for the oral proceedings should be made by the party who requested the oral proceedings and not by the board of appeal itself. A party may have good reasons to prefer in-person oral proceedings rather than by video, and a party should only be denied this option for in-person oral proceedings for a good reason. There must be some specific circumstances for the EPO to justify not holding the oral proceedings in person, such as the covid pandemic. The Enlarged Board has decided that is it permissible to arrange oral proceedings before a board of appeal by video without the consent of the parties only when there is an emergency situation.

When we return to the normal working environment, parties to appeal will have strong grounds to argue that oral proceedings should be held in-person if they prefer that format. The burden will be on the board of appeal to provide a good reason to deny such a request.

It is notable that the Enlarged Board of Appeal limited this decision to appeal proceedings only, and did not address first instance examination or opposition. However proceedings before the Examining Divisions and the Opposition Divisions are based on the same sections of the EPC. The reasoning and interpretation of the Enlarged Board may therefore be equally applicable to examination and opposition also.

Over the last two years of the covid pandemic, the EPO has taken substantial steps to introduce video oral proceedings as the default in practically all examination, opposition and appeal cases. The EPO has recently proposed wide ranging plans to enable remote working for their staff for a very significant portion of the working year. If the EPO were compelled to revert back to the more traditional oral proceedings in-person, this may cause quite some administrative and organisational headaches for the EPO management. On the other hand if the EPO were to stick with the current path of refusing in-person oral proceedings, parties in examination or opposition could certainly base a strong argument on this decision of the Enlarged Board that oral proceedings should be held in-person if the party prefers that format.

We will now have to await the reaction of the EPO to this Enlarged Board decision and see whether the EPO will be more willing to accede to requests for in-person oral proceedings, especially in first instance examination and opposition proceedings.