http://ipkitten.blogspot.com/2021/02/breaking-legality-of-board-of-appeal.html
News has reached IPKat that a Board of Appeal has referred to the Enlarged Board of Appeal (EBA) the question of whether mandatory appeal hearings via video conference are legal. The news has been reported by a patent firm attendant at the Board of Appeal proceedings at which the question was referred, reported here.
In order to avoid a growing back-log of cases during the COVID-19 pandemic, the EPO has been forced to transition to holding oral proceedings almost exclusively by video-conference (ViCo). The EPO also appears to be preparing for oral proceedings to be the new norm even once the pandemic is over. Particularly, at the beginning of this year, a new rule of procedure of the Boards of Appeal (RPBA) (Article 15a) was introduced. Article 15a permits a Board of Appeal to hold oral proceedings by ViCo whenever “the Board considers it appropriate to do so” (IPKat: The inexorable rise of EPO oral proceedings by video conference).
| The new reality |
New Article 15a has been met with a mixed response. Strong opponents of Article 15a have argued that the article is incompatible with the wording of the EPC. It seems that parties to a recent Board of Appeal ViCo appeal hearing felt aggrieved enough on this issue [Merpel: or just wanted to delay proceedings?] to request a referral to the EBA on the question of whether ViCo proceedings can be mandated by a Board of Appeal. Details of the referral are currently sketchy, and we await further information, in particular of the wording of the referred question.
The news of this latest referral reminds this Kat of the 2019 EBA referral asking whether Haar was really in Munich (G2/19), and thus whether the relocation of the Boards of Appeal to Haar was legal under the EPC (IPKat). The present referral, like that of G2/19, could be said to be as much of a political question as a legal one. Patent attorney firms with a strong presence in Munich have publicised their strong opposition to the new Article 15a RPBA, citing both the legal argument against new Article 15a and the perceived disadvantages of ViCo compared to in-person oral proceedings. By contrast, CIPA (representing UK patent attorneys) is unapologetically strongly in favour of oral proceedings by ViCo.
In G2/19 the EBA found that Haar was indeed in Munich. A similar [Merpel: and some would say commonsensical?] approach from the EBA in the present case would be to either reject the referral or find no legal issues with Article 15a. Either way, parties eager for their appeal to be heard before the Boards of Appeal can only hope for a swift resolution to the referral.
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