Boards of Appeal confirm lack of legal basis for mandatory ViCo proceedings absent a state of general emergency (T 0149/21)

http://ipkitten.blogspot.com/2023/08/boards-of-appeal-confirm-lack-of-legal.html

There is growing consensus from recent Boards of Appeal that G1/21 does not endorse the imposition of ViCo oral proceedings, absent a state of general emergency (T 1501/20). These most recent cases contradict the decisions of earlier Boards of Appeal that G1/21 could be ignored in view of improvements in ViCo technology. 

ViCo controversy catch-up

The mandatory use of ViCo in oral proceedings was introduced in response to the travel restrictions caused by the COVID-19 pandemic. ViCo oral proceedings have persisted post-pandemic as a core component of the EPO’s digital strategy. As part of this strategy, the EPO amended the Rules of the EPC to explicitly allow the use of ViCo post-pandemic. Particularly, new Article 15a of the Rules of Procedure of the Boards of Appeal (RPBA), gives Boards of Appeal the discretion to hold proceedings by ViCo whenever they consider it appropriate to do so (IPKat). 

The introduction of Article 15a RPBA led to an EBA referral (G1/21) on whether allowing Boards of Appal to impose a ViCo format on parties had legal basis in the EPC. In G 1/21, the EBA found that the mandatory use of ViCo was permissible during a state of general emergency impairing the parties’ ability to attend in-person proceedings. However, the EBA also found that the inadequacies of ViCo technology meant that in-person proceedings should nonetheless remain the “Gold-Standard” in preference to ViCo (IPKat).

Dynamic interpretation of G1/21

In the wake of G 1/21, the EPO was thus faced with the problem of reconciling the EPO’s digital strategy with the ruling from the EBA that in-person proceedings should remain the default absent a state of general emergency. The Boards of Appeal were stuck between a clear direction from the EBA and the equally clear preference of EPO management for continued use of ViCo. Initial Boards of Appeal fudged the issue by adopting a “dynamic interpretation of G1/21. In T 1158/20 and T 0758/20, for example, the Boards of Appeal found that ViCo technology had improved so dramatically since G1/21 that it could now be considered equivalent in quality to in-person proceedings. The Boards of Appeal concluded that the ruling in G 1/21 that in-person proceeding should be considered the default could thus be ignored (IPKat).

Rejecting a “dynamic interpretation” of G 1/21 (T 1501/20)

Celebrating Bastille Day

It appears that the tide may now be turning against the initial “dynamic interpretation” interpretation of G1/21 by the Boards of Appeal. The recent decision in T 1501/20 is now the third to disagree with an interpretation of G1/21 that permits enforced ViCo oral proceedings absent a state of general emergency.

According to the Board of Appeal in T 1501/20 “Article 15a(1) of the RPBA 2020 does not provide a legal basis for conducting the oral hearing in the form of a video conference against the will of one of the parties to the proceedings, unless there is a general emergency limiting the possibility for the parties to participate personally in a hearing held in the premises of the EPO” (machine translated from the German). 

In T 1501/20, the parties were invited to a hearing in Haar on Bastille Day (14 July 2023), which is a national holiday in France (Fête nationale française). One of the parties requested that the proceedings be held by ViCo in view of the national holiday. The other party initially submitted their opposition to ViCo oral proceedings. However it was eventually agreed that the proceedings could be held in a mixed mode format, with one party attending in-person and the other party attending by ViCo. 

In considering the legal basis for its decision, the Board of Appeal cited with approval T 2432/19 and T 1171/20 (IPKat). The Board of Appeal agreed with these earlier decisions that, whilst Article 15a RPBA gives the Boards of Appeal discretion to conduct oral proceedings by ViCo, G1/21 “sets certain limits to the exercise of that discretion” (r. 1.4, machine translated from the German). For the the Board of Appeal “the limitation to a general emergency in the G1/21 would not have been necessary if the EBA had considered that there was a legal basis for videoconferencing, regardless of the existence of such an emergency, against the wishes of the parties to the proceedings” (r. 1.4, machine translated from the German). The Board of Appeal concluded that there was no legal basis for holding oral proceedings solely by ViCo, against the wishes of one of the parties. 

The proceedings in T 1501/20 were therefore held in mixed-mode, with both ViCo and in-person attendance. Interestingly, in another recent decision, T 1946/21, the Board of Appeal rejected a request for mixed-mode proceedings. In this case, the professional representative of both the parties were attending in-person, but a request for additional attendees by ViCo was also submitted by one of the parties. The Board of Appeal in question rejected the request on the grounds that, given the increased technical complexity of mixed mode-proceedings, such a request should only normally be granted if participation of the ViCo attendee is relevant to the case (r.1). 

Final thoughts

Whilst the ViCo oral proceedings experience has undoubtedly improved from when it was first introduced, the attempt of some Boards of Appeal to equate ViCo with in-person proceedings was a stretch (and any such attempt is likely to remain so, absent a leap into the metaverse). Boards of Appeal are now lining up to confirm that the reasoning in G1/21 still applies. For these Board of Appeal, the inadequacies of ViCo technology means that ViCo proceedings should not be imposed on a party against their will, absent a state of general emergency. 

As always, it must be remembered that the controversy over G1/21 and Article 15a RPBA was never about whether ViCo proceedings should be an option for parties. G1/21 and the recent Boards of Appeal decisions interpreting G1/21 are about the imposition of a ViCo mode of proceedings on a party who wishes to attend proceedings in-person. The EPO has conducted a number of consultations, the results of which have come out broadly in favour of ViCo (IPKat) (see also the 2022 Annual Report of the Boards of Appeal). If ViCo is as popular as the EPO purports, imposition of the ViCo format would seem to be unnecessary. Surely parties will vote with their feet? (or lack of movement thereof…). It thus remains to be seen whether EPO management will continue their fight for mandatory ViCo, or whether the EPO’s ad campaign of ViCo as “the new gold standard” will survive the growing consensus interpretation of G1/21 from the Boards of Appeal. 

Further Reading

Content reproduced from The IPKat as permitted under the Creative Commons Licence (UK).