ViCo oral proceedings: True gold or fool’s gold? (T 0758/20)

http://ipkitten.blogspot.com/2023/04/vico-oral-proceedings-true-gold-or.html

According to recent decisions from the Boards of Appeal, G1/21 on ViCo oral proceedings is now out-dated. According to the Boards, the view of G1/21 that in-person proceedings are the gold standard is obsolete in view of improvements in ViCo technology. The latest decision in T 0758/20 adds to this narrative from the EPO that ViCo oral proceedings should be considered the “new gold standard”.

ViCo oral proceedings catch-up

The mandatory use of ViCo oral proceedings was introduced in response to the travel restrictions caused by the COVID-19 pandemic. However, beyond a simple response to COVID-19, the switch to ViCo proceedings was also a key component of the EPO’s digital strategy. As such, whilst the EPO has accepted that the measures put in place in order to deal with the pandemic are no longer required (IPKat), ViCo oral proceedings continue.  Following a decision from the EPO President the use of ViCo is now the default form of oral proceedings before the Opposition and Examination Divisions (IPKat). The EPO has also introduced new Article 15a of the Rules of Procedure of the Boards of Appeal (RPBA), under which Boards of Appeal have the discretion to hold proceedings by ViCo whenever they consider it appropriate to do so. 

True Gold

The legality of mandatory ViCo oral proceedings was considered by the EBA in G1/21. The EBA found that the use of ViCo during appeal hearings was permitted during a state of general emergency, as ViCo did not fall below the threshold required by the right to be heard (Article 113 EPC). However, the EBA also noted that in-person proceedings should nonetheless be the “gold-standard” and the default form of proceedings due to inadequacies of ViCo technology (IPKat),

Following G1/21, the EPO was faced with the problem of reconciling their digital strategy with the clear direction from the EBA that in-person proceedings should be the default (IPKat). The Boards of Appeal initially avoided the issue by continuing to find, whenever challenged, that there was a continued state of general emergency justifying the use of mandatory ViCo proceedings (IPKat). However, this position became untenable following the EPO announcement of the cessation of the measures put in place for the pandemic. 

Dynamic interpretation of “the gold standard”

One of the first Boards of Appeal faced with implementing G1/21 after COVID-19, found a simple if controversial work around to the problem of reconciling the EPO’s digital strategy and the reasoning in G1/21. According to the Board of Appeal in T 1158/20, ViCo technology has improved so much since G1/21, that ViCo proceedings are now equivalent in quality to in-person proceedings (IPKat). 

A further decision from the Board of Appeal has now come to a very similar finding. The decision in T 0758/20 related to an appeal from the Opposition to uphold the patent EP2884860. The Opponent requested that oral proceedings for the appeal be held in-person. The Opponent also requested a referral to the EBA on the question of the compatibility of Article 15a(1) RPBA with G1/21. In particular, the Opponent requested a referral on whether the discretion of Boards of Appeal to hold oral proceedings by ViCo for any reason provided by Article 15a(1) RPBA was compatible with the reasoning in G1/21 that in-person proceedings should be the default. 

The Board of Appeal in T 0758/20 first noted that Article 15a(1) RPBA unequivocally permits Boards of Appeal to hold oral proceedings by ViCo whenever they so decide, irrespective of whether the parties agree. In the case in question, the Board of Appeal used their discretion to hold proceedings by ViCo in view of the fact that there were still some COVID-19 restrictions in place that might affect travel to Haar. 

The Board of Appeal then also went on to consider how G1/21 should be interpreted absent a state of emergency. The Board of Appeal concluded that the reasoning in G1/21 stating that in-person proceedings should be the default could be ignored for two reasons. First, the EBA in G1/21 had rephrased the question in G1/21 to the context of a state of general emergency. In view of the reformulated question, the Board of Appeal in T 0758/20 reasoned that the EBA’s observations on the inadequacies of ViCo absent a state of general emergency were irrelevant. Second, the Board of Appeal echoed the previous decision in T 1158/20 by noting that G1/21 was issued during a time in which the Boards of Appeal had little experience of ViCo. Since G1/21, both Boards of Appeal argued, ViCo technology has greatly improved such that it is now equivalent to in-person proceedings:

“holding oral proceedings by videoconference is no longer disadvantageous compared to the gold standard as it was when decision G 1/21 was taken. On the contrary, in the board’s view, nowadays oral proceedings held by videoconference are often equivalent to a hearing in person” (T 0758/20)

In their praise of ViCo, the Board of Appeal in T 1158/20 and T 0758/20 are singing from the same hymn sheet. The Board of Appeal in T 0758/20 also considered its decision as being entirely aligned with G1/21, and thus rejected the Opponent’s request for a referral to the EBA. 

Final Thoughts

There are certainly many advantages to recommend ViCo as an alternative to in-person proceedings, not least being their lower environmental impact. However, the interpretation of G1/21 by the Boards of Appeal is unfortunately very reminiscent of the EPO’s approach in the controversial Pepper case (G3/19), whereby a change in the external political circumstances was found by the EBA to justify a change in their legal interpretation of the EPC (IPKat). On ViCo, the Boards of Appeal are thus far aligned on a dynamic interpretation of “in-person proceedings should be the default” as being out-dated and irrelevant, in view of what is being touted as the dramatically improved quality of ViCo. The Boards of Appeals’ insistence on the improved quality of ViCo, and their equivalence to in-person proceedings, is also not currently backed up with evidence. This Kat wonders if ViCo technology has indeed made such leaps since July 2021, when G1/21 was decided. In the absence of evidence, we are left with the question of whether ViCo proceedings are really as golden as the EPO insists they have become. 

 Further reading

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