The ‘new normal’ at the EPO and more particularly plans to allow oral proceedings by videoconference even if parties don’t want it, have been leading to extensive debate over the last weeks. No less than 47 amicus curiae briefs were filed with the Enlarged Board of Appeal in case G 1/21, where the crucial referral question will be answered: “Is the conduct of oral proceedings in the form of a videoconference compatible with the right to oral proceedings as enshrined in Article 116(1) EPC if not all of the parties to the proceedings have given their consent to the conduct of oral proceedings in the form of a videoconference?”

Videoproceedings have gained a lot of ground since the Covid pandemic broke out over a year ago. In the view of the European Patent Office they are a way to conduct hearings without health risks and to prevent severe backlogs. But the EPO’s proposal to enforce oral proceedings by videoconference even if one of the parties is opposed to it, as laid down in a new Article 15a of the Rules of Procedure of the Boards of Appeal (RPBA), was highly controversial.

The article was envisaged to enter into force on 1 April 2021. It was even before that date that in case T 1807/15, Andrew AG vs. Rohde & Schwarz, the Technical Board scheduled an oral proceeding in the form of a videoconference without the parties’ consent, which led to the G 1/21 referral to the Enlarged Board of Appeal, the EPO’s highest judicial body.

The Board will hear the crucial submission on 28 May 2021, via video conference ironically, which will enable any interested party to follow the case. And it can be expected that many will do so. Not unlike other changes at Europe’s patent organisation, it seems the introduction of Article 15a is pushed through regardless of criticism and/or results of consultations concerning the ‘new normal’ president António Campinos is propagating.

As has earlier been explained in this blogpost of IP Kat, the “hasty scheduling of the oral proceedings [regarding G 1/21] with limited time for third parties to comment, and (…) the potential conflicts of the appointed members of the Enlarged Board” has been met with criticism. This concerns, among others, Carl Josefsson who helped introduce article 15a and, as chairman of the EBA , is now responsible for deciding whether the article complies with the European Patent Convention.

Suspicion of partiality

In a ‘preliminary brief’, the Institute of Professional Representatives before the European Patent Office epi writes it: “considers that the question under consideration in G 1/21, concerning oral proceedings under Article 116 EPC, is very important. epi also notes that a number of questions have been raised about the operation of the EPO and the Boards of Appeal, not least in complaints to the German Constitutional Court. It is therefore, in epi’s view, essential for the European patent system to show that the Enlarged Board not only is but also appears to be a proper judicial body. (…) In Article 24(3) EPC, it is made clear that, if a member is suspected of partiality, this is a possible reason for exclusion. (…) In this respect, it is pointed out the President of the Boards of Appeal (…) and some other members of the Panel were involved in the drafting of new Article 15a RPBA and it is this involvement which gives rise to a suspicion of partiality.”

The criticism is also voiced, in stronger words, in an anonymous brief by ‘A. Schauinsland’: “Manifest partiality of the president of the boards of appeal in case G 1/21 The president of the boards of appeal, Mr Josefsson, has decided to put himself as chair in G 1/21. The succession of facts mentioned above would impose that Mr Josefsson deports himself in G 1/21. Not only he is chairing the case, has contributed to the drafting of Art 15aRPBA2020, but at the same time he has contributed in rushing the whole affair by abiding to the bare minimum foreseen under R 115 when summoning to oral proceedings. In view of his attitude, there is not even the perception that Mr Josefsson would be not prejudiced, he actually is.”

Apart from the preliminary document, epi also filed a ‘substantive brief’: “As explained in detail below, a thorough application of the methods of interpretation usually applied by the Enlarged Board of Appeal to construe legal provisions of the EPC leads to the conclusion that the conduct of oral proceedings by videoconference without the consent of the parties is not in conformity with Article 116 EPC: epi is therefore of the opinion that the answer to the question of law should be negative.”

Seven large German patent attorney firms submitted a joint comment. As is summarized on the website of one of the firms: “Video proceedings can be a useful option for a party, but should not be made mandatory. Only under very exceptional circumstances, e.g. in the case of a pandemic and if one of the parties appears to refuse its consent to video proceedings with the intention to abuse the proceedings, may an exception to this rule be conceivable. Hoffmann Eitle have therefore joined with six other renowned patent attorney firms and filed a joint amicus curiae brief to the EPO, accompanied by a legal opinion of Justice Professor Dr. Siegfried Broß, who has served as a judge at both the German Federal Constitutional Court and in the patent panel of the Federal Court of Justice. The brief (in German only) can be found here.”

In the majority of the amicus curiae briefs it is argued, based on legal arguments, experiences with oral proceedings online or lack of clarity concerning the EPO’s reasoning behind enforcing videoconferencing, that article 15a RPBA is in violation of the European Patent Convention. Other briefs focused on conditions in which oral proceedings can be held, even without consent of both parties. Some submissions are positive about oral proceedings. The author of this blog wasn’t able to read and analyse every brief in detail, but below you’ll find a series of quotes from them.

The IP Federation “believes that, in order to ensure natural justice and protect parties’ rights to a fair hearing, the short answer to the question referred to the Enlarged Board of Appeal should be no: the conduct of oral proceedings in the form of a videoconference is not compatible with the right to oral proceedings as enshrined in Article 116(1) EPC if not all of the parties to the proceedings have given their consent to the conduct of oral proceedings in the form of a videoconference.”

The International Federation of IP Attorneys: “FICPI believes that oral proceedings in the form of a videoconference are compatible with the right to oral proceedings as enshrined in Article 116(1) EPC. However, as already explained in FICPI’s opinion on new Article 15a of the Rules of Procedure of the Boards of Appeal, “a party’s right to an in-person oral hearing is a fundamental principle of any judicial system. Once the Covid emergency is over, therefore, parties should always have the right to attend oral proceedings in person, at least in inter partes proceedings, even if oral proceedings by videoconference become a standard option for conducting oral proceedings in the future. In this connection, FICPI notes that proceedings before the Boards are last instance proceedings and it is very important that parties are seen to have full access to justice.” Therefore, parties should always have the right to request (well in advance) and obtain to attend oral proceedings in person, at the presence of the members of the Division or Board in question, except during periods where extraordinary circumstances, such as public health emergencies or security reasons, makes this impossible.”

The Swiss Association of Patent Attorneys VESPA: “The evidence-based research clearly shows that videoconferences do currently have an impact on the outcome of court proceedings. It is thus evident that videoconferences have an impact on the true «essence of oral proceedings» as they used to be, i.e. in-person. (…) Forcing videoconferences as ‘oral proceedings’ on unwilling parties is a major change to an essential element of the parties’ right to be heard, i.e. the oral proceedings in-person as they used to be, when there is no indication at all available that the legislator had ever even thought about compromising the quality of communication of in-person interaction. (…) Restricting the right to be heard and the right to a fair trial would require legislative measures. This should not be taken lightly by way of judicial legislation, and it should not be rushed.”

Bayer: “The EPO cannot use the pandemic situation as a backdoor to establish new standards and to introduce mandatory oral proceedings by videoconference as a fait accompli.”

BASF: “no party can, in principle, be precluded from appearing in person in oral proceedings against the will of such party. An exception is only possible for the duration of an objectively life-threatening, uncontrollable pandemic, and only if such exception is objectively necessary to safeguard life and health of the very persons in question.

APEB: “Examples of situations in which in-person oral proceedings must be held would include, but not be limited to: A representative or party would be impeded from correctly participating via videoconference format due to health issues (temporary or permanent); The conduct of oral proceedings by video conference would lead to or increase a significant imbalance between the parties, for example because of the lack of a party’s access to appropriate videoconferencing tools; Oral Proceedings where witnesses are to be heard; Oral proceedings with a large number of opponents (…), or a large number of parties wishing to attend the oral proceedings; Oral proceedings in a complex case where in-person presence is required for correct presentation of the case (examples: a prototype of an invention needs to be demonstrated; complex drawings need to be displayed)”

REPI (Réseau Entreprises – Propriété Intellectuelle) “is thus of the opinion that a range of circumstances need to be taken into account in deciding whether to conduct oral proceedings in-person or via videoconference, keeping in mind the overarching principles of access to justice and quality of EPO decisions. In order for all parties to have legal certainty, if the Enlarged Board of Appeal reaches a positive decision on the question asked, it would be essential that the EPO engages in a consultation process with stakeholders with a view to establish and publish guidance on the criteria that will be used to decide on the manner in which oral proceedings will be conducted in the future.”

Laine IP: “in case the Enlarged Board of Appeal decides to answer to the referred question in the affirmative, i.e. that the conduct of oral proceedings in the form of a videoconference is compatible with the right to oral proceedings as enshrined in Article 116(1) EPC even without consent by all of the parties, the Enlarged Board of Appeal is respectfully requested also to clarify: What are the minimum requirements that a videoconferencing technology must fulfil in order for a videoconference to be compatible with the entitlement to a fair and public hearing in oral proceedings before the opposition divisions and the Boards of Appeal if not all of the parties to the proceedings have given their consent to the conduct of oral proceedings in the form of a videoconference?”

EPO, Rijswijk. (Rob Oo, CC BY 2.0 via Wikimedia Commons)

Philips International: “The conduct of oral proceedings in the form of a videoconference is compatible with the right to oral proceedings as enshrined in Article 116(1) EPC whenever a videoconference adequately provides a fair hearing in which the parties concerned have an opportunity to orally and interactively present their comments while the parties and the EPO can see each other. This also holds if not all of the parties to the proceedings have given their consent to the conduct of oral proceedings in the form of a videoconference.”

Medicines for Europe: “we urge the Enlarged Board of patients to confirm that the conduct of oral proceedings in the form of a videoconference is compatible with the right to oral proceedings as enshrined in Article 116(1) EPC, in order to avoid unjustifiable postponements or the possibility to a single party of opting-out unless there is an imperative reason.

Plasseraud IP: “there does not exist any right for a party to give consent to the conduct of Oral Proceedings in the form of a videoconference. In inter partes proceedings, there would in fact be an unlawful unbalance if a party situated close to the EPO premises could force another party to travel over long distances, simply by refusing to give such consent. We have indeed received overtures from Munich-based firms who have been lobbying IP firms and even our clients, requesting support on their anti-videoconference position. The intention appears to be to protect their own interests which have been served for decades by the need for non-Munich firms to bear travel expenses in order to avoid disadvantages to their clients in inter partes oral proceedings. Answering “Yes” to the question currently before the Enlarged Board of Appeal would remove this long entrenched competitive advantage and result in greater fairness to all parties. Furthermore, we have full confidence in the EPO’s capacity to continue to render decisions of high quality. We do not agree with certain allegations whereby videoconference Oral Proceedings would lead to lower quality of decisions from the EPO.”

The Chartered Institute of Patent Attorneys: CIPA has previously stated its support for videoconference oral proceedings, subject only to the underlying systems being fit for purpose. We welcome the speed at which the Enlarged Board has convened oral proceedings in this reference and urge similar expedience in issuing a decision to minimise the period of uncertainty. We are aware that concerns have been raised over an appearance of partiality of the Enlarged Board as constituted. CIPA strongly believes that the impartiality of the Enlarged Board is essential for the rule of law. We note the detailed construction by the referring Board of the term “oral proceedings” in Article 116 EPC (point 5 of the referral). We agree with the Board’s recognition at 4.1.3 that “running videoconferences using a technology that generally functions properly is compatible with both the right to be heard and the right to a fair trial”. Neither the wording of Article 116 nor its intent would appear to preclude videoconferencing.

Carpmaels & Ransford: “As summarised above, the present provisions allow oral proceedings before the examining and opposition divisions to be held in-person if serious reasons are provided as to why oral proceedings being held by videoconference are inappropriate. Boards have discretion to decide the suitability of the case to be heard by videoconference. Providing that there is clear guidance and consistency of application with regard to situations where oral proceedings may be held in-person on request, parties would appear to be adequately safeguarded.”

On Tuesday, the deadline for filing briefs, EPO president António Campinos submitted written observations to the Enlarged Board of Appeal himself as well. In a letter to the chairman of the EBA, Carl Josefsson, he thanks for the invitation to give “written comments on the points of law referred to by Decision T 1807/15”. His conclusion doesn’t come as a surprise:

“Article 116 doesn’t stipulate the form of oral proceedings, it only determines the minimum requirements, which can be fulfilled by videoconference oral proceedings held in accordance with EPO’s practice. The decision as to the form in which oral proceedings are held, lies with the competent department, not the parties. Accordingly, the question of whether oral proceedings can be held by videoconference cannot depend on the consent, a waiver or similar procedural declaration of the parties.”

The number of amicus curiae briefs is not 44, as was stated in an earlier version of this post, but 47, and has been corrected.


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  1. The Enlarged Board of Appeal should be careful in dealing with the opponent’request to exclude the chairman because of suspicion of partiality. The German Constitutional Court decided a very similar case concerning its member Peter Müller, the former Head of Government of Saarland. Suspicion of partiality was accepted because the member had introduced a politically contested bill and defended it in the public. The Enlarged Board of Appeal could use the reasons given by the BVerfG in BvR 656/16 (BVerfGE 148, 1) as a blueprint for its own case. Strange coincidence: A member of the 2nd Senate of the BVerfG in the cited case was Prof. Huber who also is rapporteur in the pending cases concerning the question whether the Board of Appeals are proper Courts.

  2. In LinkedIn you can find a summary of all amicus curiae whether in favour of holding OP by ViCo without the consent of parties or opposing it. It is a personal summary and it does not pretend to be exhaustive and accurate in all details. I just hope it gives a fair account.

    One fact seem not to be disputed. Whether a negative or a positive answer should be given, OP by ViCo should be a possibility offered by the EPO and not limited to ex-parte procedures as in the past. For those against the mandatory character of OP by ViCo the principle of party disposition should be respected.

    A very important is contribution is that of epi which, after all, is a body enshrined in the EPC, cf. Art 134a(1). Epi did not only take a strong negative position, but also queried the possible partiality of the chair of the EBA in G 1/21, whereas on the positive side, the fact that the chair of the BA had expressed an opinion was not seen as being prejudiced.

    All the arguments relating to the unsuitability of OP by ViCo for psychological reasons or the like are very interesting and cannot be wiped aside. However they do not appear to weigh much in the framework of the legal problem raised by forcing parties to OP by ViCo outside the pandemic.

    The discussion should be a legal one and boils down to the question whether the AC is empowered to actually amend the EPC by secondary legislation like Art 15aRPBA20. We do not have, whether in the EPC or its Implementing Regulations, a rule like R 28(2) which was adopted by the AC and then subject to decision G 3/19.

    Art 33(1,a) appears only to empower the AC to amend Parts II to VIII and Part X of the EPC, to bring them into line with an international treaty relating to patents or European Community legislation relating to patents. OP by ViCo, with or without the consent of parties do not seem to stem from international treaties relating to patents or European Community legislation relating to patents.

    OP by ViCo have shown to be a good tool during the pandemic, but it is their mandatory character outside the pandemic and the provisions contained in Art 15a(3)RPBA which allows the deciding bodies of the EPO not to be present at the various locations of the EPO, which are a problem for a lot of users.

    The situation is thus different from that in G 3/19, whereas in G 2/19 the EBA held that: “Users of the European Patent Organisation’s services can legitimately expect that the European Patent Office’s departments will not perform acts at whatever other place they choose”.

    In my humble opinion, Art 116 is indeed silent on a lot of things, but claiming that it allows OP by ViCo, even without consent of the parties, is as convincing as claiming the contrary.

    Here are the links:

  3. A word of clarification: it goes without saying that the position of president of the EPO is clearly in favour of a positive answer.

    If the answer is positive, the President will have carte blanche to relocate the EPO since the “New Normal” he wants to introduce provides for the examination and opposition divisions to be dispersed throughout the member states and even outside.

    One only has to look at Art 15a(3)RPCR20 which allows the relocation of the BAs whereas in G 2/19 the EBA had specified that: “Users of the services of the European Patent Organisation are certainly entitled to expect that the EPO authorities do not perform their legal acts in any third place”. If this is possible for the RCs, it is also possible for the first instance and this is also one of the reasons put forward by the President for his position.

    The president was careful enough not to quote this passage of G 2/19 but another one that adds water to his argument. See Points 14, 18, 25, 33, 81 of his input of 27.04.2021.

    The mandatory nature of OPs through ViCo is already a problem, but this relocation is even more problematic. It is highly doubtful that the President, the BOAC and the AC have sufficient legitimacy to change so profoundly the structure of the EPO and the EPC.

    After all the amendment of Art 16 and 17 EPC was the result of a diplomatic conference in 2000. Art 6 EPC expressly mentions Munich and The Hague, Art 7 EPC allows Berlin and Vienna.

    The President regularly quotes Art 10(2,a)EPC which authorises him to “take all appropriate measures ….. with a view to ensuring the functioning of the European Patent Office”, but forgets Art 10(2,b)EPC which allows him to “determine …… the acts to be performed respectively at the European Patent Office in Munich or at its department in The Hague”.

    There are enough direct and unambiguous references in the EPC which make abundantly clear that the EPC requires the location of the EPO’s decision-making bodies in Munich/Haar, The Hague and Berlin.

    It is astonishing that the President of the BAs, who should be the first guardian of the EPC, would allow himself to propose the dismantling of the EPO and that the AC did not oppose it.

    G 1/21 goes far beyond the issue of OP under ViCo. It puts at stake the existence of the EPO and the EPC as conceived in 1973 and 2000.

    None of the positive answers addressed this issue. This is a great pity.

  4. Where the same judge proposed changes of rules for himself?

    That’s a good seperation of powers!

    1. The idea that the driving force behind Art 15a RPBA gets to “mark his own homework” on a matter of constitutional importance could not be any more clearly contrary to the separation of powers principle.

      It is impossible to imagine that, in any Contracting Member State of the EPC, a similarly inappropriate chairman for a panel of judges would ever be contemplated for any court, let alone a “supreme” court. The closest equivalent that I can think of would be the hypothetical scenario in which, instead of Lady Hale, Boris Johnson got to act as head of the UK Supreme Court in the case that considered the question of whether his advice to the monarch (to prorogue Parliament) was unlawful. It is not difficult to imagine that, in that scenario, the Supreme Court’s decision might have been somewhat different to that announced by Lady Hale … especially if Boris had managed to ensure that members of his administration (including himself) formed a majority of the panel of judges.

      I would be very interested to learn what the external members of the EBA make of all this.

  5. Interesting observation: amongst the amicus briefs that support a positive answer to the question referred, there is not to be found a single objection to the current composition of the EBA. (CIPA merely mentions concerns expressed by others but does not elucidate any grounds for concern. On the other hand, Fresenius Kabi go as far as arguing that the composition of the EBA is entirely unproblematic.)

    This can only mean one of three things.

    Firstly, it could mean that those arguing that the answer should be “yes” simply have not spotted the potential problems (at least of perception) with having the driving force behind Art 15a RPBA sitting as the chair of the EBA.

    Alternatively, it could mean that “yes” supporters simply do not believe that the potential problems are big enough to be worth mentioning.

    Finally, it could mean that “yes” supporters are keeping quiet about the obvious problems with the composition of the EBA because they believe that composition is highly likely to answer “yes” to the question referred.

    In connection with the rule of law at the EPO, none of these three possible alternatives is particularly reassuring. Are we really to believe that, for seemingly so many in the profession, getting an answer that is commercially convenient is more important than standing up for fundamental principles that underpin the rule of law?

  6. At least it is clear now for the EPO that people and large corporations are watching. I don’t think that the outcome will change though. As a head of an IP department I am not against ViCos but think that the EPC needs to be properly changed before they can become compulsory. In my view, the EPO’s current position is pragmatic and cost effective but against the law.

  7. If for whatever reason the rule of law is abolished, and this especially by those whose duty should be the guardian of the law, then we end up in the jungle and the right of the stronger prevails. Do we really want this? I do not.

    Not all positive submissions dodge the problem of the composition of the EBA. In one them it was stated that the fact that the president of the EBA has expressed an opinion does not mean that he is prejudiced. When you see all the behaviour of the president of the BA in this matter, it is difficult to come to such an innocent position.

    Nothing against the EPO being cost effective and pragmatic. I would however draw the attention that even electronic communication and the Internet have a far more higher carbon footprint/environmental effect as one would think.

    Not only electronic communication as such, but all the electronic devices themselves we use have a non-negligible carbon footprint or a disastrous environmental effect.

    It is clear that running an electric car does not produce CO2 as such, but the electricity it needs for charging its batteries and the its manufacture have a CO2 footprint and environmental effect about three times that of the manufacture of a classical car. This does not mean that I am against stopping the exploitation of fossil sources of energy, but the equation has to be honest and show in all the parameters involved!

    Yes to OP by ViCo, but not without the consent of the parties!
    And even for OP by ViCo as such, the EPO needs to be changed.

    What is going on here is the attempt to legalise afterwards a practice which has been established without any legitimacy.

  8. Looking at the EPO President’s submission in connection with G 1/21, it seems to me that it has been drafted upon the basis of presenting pretty much ANY supporting argument, no matter how potentially risible or misleading.

    There are so many to choose from, but points that stand out to me include the following.

    Point 49: the suggestion that ANY Implementing Regulation passed by the AC could amount to a subsequent agreement or practice under the Vienna Convention … which suggestion conveniently ignores the fact that the cited case law (G 2/12) was dealing with an Implementing Regulation that was passed not by the AC but instead by the EPC legislator (at the Diplomatic Conference leading to EPC2000). The same error is repeated in points 49b and c, where the AC is conflated with (all of) the Contracting States.

    Point 49a: the suggestion that by deciding NOT to amend Art 116 at the Diplomatic Conference leading to EPC2000, the EPC legislator intended that the SAME words would now have a DIFFERENT meaning … which suggestion conveniently ignores logic, standard interpretative methodology and the fact that there is precisely ZERO evidence that the legislator even considered the impact of developments in VICO technology (which already existed at the time EPC1973 was signed) might have upon the interpretation of Art 116.

    Point 62: the suggestion that the “waiver declaration” required between 1998 and 2006 for the conduct of VICO oral proceedings in examination merely reflects the second sentence of Art 116(1) EPC (ie preventing the duplication of proceedings) … which suggestion conveniently ignores the fact that such waiver declarations were NOT required for the conduct of in-person oral proceedings, meaning that, at the time EPC2000 was signed, VICO oral proceedings were undeniably viewed by the EPO as being both different AND inferior to in-person proceedings.

    Also worth mentioning is the EPO President’s approach to dealing with the well-established case law of the Boards of Appeal holding that Art 116 affords an absolute right to in-person proceedings (but NOT to VICO proceedings), and that there is no legal basis for VICO proceedings before the Boards of Appeal. That approach could be best be described as “ignore, avoid and gloss over”.

    Irrespective of the above points, there really are no arguments in the EPO President’s submission that, from a strictly legal perspective, could be viewed as persuasive. However, I have my doubts whether this will prevent the EBA’s opinion from reiterating the same arguments in order to justify a positive answer to the question referred. We shall have to wait and see … but not before seeing how the EBA deals with the objection raised under Art 24(3) by a party to the proceedings (namely, the opponent).

    With only a few weeks to go before oral proceedings are due to take place, the EBA will certainly need to act quickly upon the opponent’s Art 24(3) objection, especially given that it could lead to a substantial change in the composition of the EBA. Interesting to note that the EBA seems to have already taken longer to act upon the opponent’s objection that it did to pick up the referral (and issue a Summons for oral proceedings) back in March. Whether this is significant remains to be seen.

  9. The president’s input to G 1/21 has not been drafted by himself.
    He has to rely on lawyers in Directorate Patent Law.
    I would take the defence of active staff having had to draft the president’s comments.
    I cannot imagine any staff member of the EPO opposing the wish of the president, even if they realise that what they write is plain legal nonsense and even contradictory.
    It is worth noting that in G 1/21 the president will not merely be represented as usual by the Director Patent Law and a lawyer of this department, but the PD Legal Affairs will be present.
    It is manifest that the president does not want to see its “New Normal” jeopardised by the EBA.
    The choice of the majority of the members of the EBA is such that president should be preserved from any reply which would displease him.

    1. Attentive, you refer to “the majority” of the EBA membership but I’m wondering about the External Members. What options are open to them? Resign, perhaps? Write a dissenting minority opinion perhaps? Or are they bound by “collective responsibility” (like in a jury room or a Prime Minister’s Cabinet meeting), to say nothing outside the room in which the EBA deliberates?

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