http://ipkitten.blogspot.com/2021/05/breaking-oral-proceedings-in-g121-vico.html
The Enlarged Board of Appeal (EBA) has decided to reschedule oral proceedings for G1/21 due to a procedural technicality. The referral concerns the legality of conducting Board of Appeal oral proceedings by Video Conferencing (ViCo) without the consent of all parties. However, the substantive issues in the referral were not considered today. Instead, the EBA accepted a request from the Opponent for postponement of proceedings. The Opponent particularly objected that they had not been given sufficient time to consider the President’s submissions on the referral, given that they had only received formal notification of these submissions a few days before the hearing.
G1/21: Case catch-up
The new rule of procedure of the Boards of Appeal (RPBA), Article 15a, was introduced earlier this year. Article 15a RPBA permits a Board of Appeal to hold oral proceedings by ViCo whenever “the Board considers it appropriate to do so”. The rapid introduction of this new provision sparked considerable controversy, given that it permits Boards of Appeal to hold oral proceedings by ViCo even when one or more of the parties disagree. Whilst most commentators have accepted the necessity of ViCo proceedings during the COVID-19 pandemic, concerns were raised that access to justice before the EPO requires a party to have the right to put their case in-person.
The referral in G1/21 asks whether Article 15a RPBA is compatible with the right to oral proceedings as enshrined in Article 116(1) EPC. The referral itself stems from appeal of the opposition decision to maintain EP1609239 in amended form (T1807/15) (IPKat).
| IPKat desk of G1/21 news |
Partiality of the EBA members
Given the involvement of some of the members of the EBA panel appointed to decide on the referral in the adoption of Article 15a RPBA, the composition of the panel unsurprisingly proved controversial. Numerous amicus curiae were filed requesting that the potentially conflicted members be replaced (IPKat). In response to similar objections from the Opponent, the EBA last week issued an interlocutory decision changing the composition of the EBA panel. The decision replaced Board Chairman, Mr Carl Josefsson, and the Rapporteur, I. Beckedorf (the Rapporteur’s job is to, inter alia, draft the EBA decision (Article 5 RPBA)). Two other members of the panel against which objections had been raised by the Opponent were not found to be at risk of objective partiality (IPKat).
The Opponent was not satisfied by the changes to the EBA panel and further submissions on this issue were made shortly before the hearing. The Opponent noted their concern that the EBA panel members who were found at risk of objective partiality had not informed the EBA about their circumstances earlier in proceedings. The Opponent also submitted a further 11 requests in response to the interlocutory decision. These included a request for postponement of the scheduled oral proceedings, for the submissions of the replaced EBA panel members to be disclosed, and for the public to be invited to file further amicus curiae concerning the composition of the panel.
Non-public discussions at the 28 May 2021 hearing
The oral proceedings in G1/21 were today held (rather ironically) by Zoom and could be watched by anyone online as a livestream. The ability of anyone to watch today’s hearing from anywhere in the world, from the comfort of their own work desk, is perhaps an argument in and of itself for the continuation of ViCo oral proceedings.
However, the entire morning of today’s proceedings was held behind (virtual) closed doors, as the EBA considered the objections regarding perceived partiality of the newly appointed members of the panel. According to Boards of Appeal case law, the public may be excluded from proceedings relating to objections to members of the Boards under Article 24(3) EPC (Case Law of the Boards of Appeal, III-C-7.2, T 0190/03).
The public hearing recommenced after lunch with the announcement by the EBA that all of the new objections and requests raised by the Opponent on the composition of the EBA panel had been refused (except for the request to consider the requests at today’s oral proceedings).
Speed versus diligence
However, even once the partiality objections had been dealt with, it was still not yet time to discuss the substantial legal aspects surrounding ViCo oral proceedings. The EBA next went on to deal with a further procedural objection raised by the Opponent. The Opponent submitted that they had been formally notified of the EPO President’s comments on the referral only 2 days before the hearing. Such a short period of time, the Opponent’s representative submitted, was not enough for them to discuss the submissions with their client (especially given that their client had been on holiday), or to respond to the submissions as provided for by Article 9 Rules of Procedure of the Enlarged Board of Appeal (RPEBA).
As the EBA noted, the Opponent had probably been aware of the President’s comments before they received the formal notification from the EPO. The President’s comments had been published on the EPO website for all to see on 28 April 2021 (and had been widely reported and discussed). None-the-less, the Opponent submitted that they could not be expected to continuously monitor for submissions published somewhere on the EPO website. In reality, the question was probably more of a matter of legal principle than of an actual loss of the right to be heard, given that it seems highly unlikely that the Opponent did not read and review the President’s comments when they were published online in April.
The EBA was clearly concerned that a decision on the legality of mandatory ViCo proceedings should not be unnecessarily delayed, given the potentially large number of affected cases. The Opponent was therefore asked how long they would require to consider the President’s submissions. The Opponent responded that they would like at least 1 month. The EBA accepted this request, and oral proceedings will be rescheduled for June-July in order to allow the Opponent to make further written submissions.
It thus seems that, in the Enlarged Board’s admirable attempt to provide legal certainty on ViCo proceedings as soon as possible, certain procedural rules have been overlooked. We will therefore have to wait a little longer to hear the arguments on the substantive issues of the referral. However, on the plus side, at least the parties will not have to travel all the way back to Munich to attend the rescheduled hearing…
Further reading
18 January 2021: The inexorable rise of EPO oral proceedings by video conference
9 Feb 2021: The legality of Board of Appeal oral proceedings by video conference has been referred to the EBA
16 March 2021: Board of Appeal in T1807/15 continues with ViCo oral proceedings referral
29 March 2021: Chairman and Enlarged Board criticised for lack of impartiality in ViCo oral proceedings referral (G1/21)
21 May 2021: EPO responds to accusations of perceived bias in G1/21 (ViCo oral proceedings)
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