http://ipkitten.blogspot.com/2021/07/vico-oral-proceedings-on-legality-of.html
The re-scheduled Enlarged Board of Appeal (EBA) oral proceedings for referral G1/21 (ViCo oral proceedings), were held last Friday. The EBA did not announce a decision during proceedings and we now await a written decision. The EBA oral proceedings were themselves plagued by technical issues that, unfortunately for the EPO, were not a great advertisement for the benefits of ViCo proceedings. For critics of ViCo, these difficulties were an ironic reminder that ViCo cannot be considered equivalent to in-person proceedings. However, the fact that the oral proceedings were conducted by ViCo meant that anyone was able to watch proceedings in the referral without the inconvenience and expense of attending the EPO in-person. The proceedings thus will have received an audience far wider than would otherwise have been the case. So where does the balance between fairness, efficiency and justice lie?
| Tuning in to G1/21 |
G1/12: Case Catch-up
Earlier this year, the EPO introduced a new rule of procedure of the Boards of Appeal (RPBA), Article 15a (IPKat). This new article permits Boards of Appeal to hold oral proceedings by ViCo whenever “the Board considers it appropriate to do so”, in other words, even without the consent of all parties. Whilst many 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 stems from the appeal of the opposition decision to maintain EP1609239 in amended form (T1807/15) (IPKat). The referral in G1/21 asked whether Article 15a RPBA is compatible with the right to oral proceedings as enshrined in Article 116(1) EPC.
Oral proceedings Part I (May 2021) (IPKat)
G1/21 has been dogged with criticism that the Enlarged Board appointed to hear the referral lacked impartiality, or at the very least the appearance of such, given the members’ own involvement with the adoption of Article 15a RPBA (IPKat). In response to objections from the Opponent that the EBA was at risk of perceived partiality, the composition of the Board was changed shortly before the first oral proceedings (IPKat). However, the Opponent was not satisfied with the extent of changes. The start of the first oral proceedings were thus conducted behind closed doors whilst the EBA discussed the Opponent’s request for further members of the Board to be replaced. These requests were subsequently rejected.
The EBA next went on to deal with a further procedural objection raised by the Opponent. The Opponent particularly submitted that they had only been formally informed of the EPO President’s comments on the referral 2 days before oral proceedings. Given the high profile nature of the case, it seems highly likely that the Opponent had already been unaware of the President’s comments, which had been available on the public register since April, before they received the formal notice. Nonetheless, the EBA accepted that the proper procedures had not been followed and oral proceedings were consequently rescheduled for July.
Oral proceedings, Part II (July 2021)
In the intervening month between the first and second oral proceedings, there was more back and forth between the EBA and the Opponent on the partiality question. Oral proceedings Part II itself began with the ambitious request from the Opponent that the EBA declare itself non-competent, and that proceedings be further delayed. The EBA rejected both of these requests.
It was then finally time for the arguments on the substantive matter of the referral to be heard. The representative of the President of the EPO presented the case in favour of the legal allowability of mandatory ViCo oral proceedings. Put simply, the President’s argument was that Article 116 EPC does not specify the form in which oral proceedings should be conducted. Whether or not to conduct proceedings by ViCo is therefore at the discretion of the EPO deciding body.
In response, the Opponent argued that Art. 116 does not mention ViCo oral proceedings, and that mandating that oral proceedings be held by ViCo is an abuse of a party’s right to be heard in person, and the rights provided in Art. 116.
An interesting exchange between the EBA and the President’s representative concerned the question of whether the preference of EPO users should influence the EPO’s decision on ViCo oral proceedings. The EBA noted the many amicus curiae arguing against mandatory ViCo oral proceedings (about 30 of the total 50 amicus curiae submitted on the referral). In response, the President’s representative noted that parties have been overwhelmingly in favour of oral proceedings by ViCo. Furthermore, before oral proceedings by ViCo were mandatory, only 300 oral proceedings by ViCo were held, with one party in the dispute being able to stall proceedings for all the others. Since oral proceedings by ViCo have become mandatory, 3000 oral proceedings by ViCo have taken place. As such, it was argued, oral proceedings by ViCo provides quick access to justice and early legal certainty for the parties involved.
However, the relevance of the statistics and user feedback cited by the EPO are questioned by critics, who note that we are still in the midst of a pandemic. Whilst ViCo oral proceedings have been essential for keeping the process of justice going during the extraordinary circumstances of a global crisis, it is argued that this does not justify a change to ViCo oral proceedings once the current crisis has been overcome.
We now await the EBA’s written decision.
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)
28 May 2021: Oral proceedings in G1/21 (ViCo) rescheduled due to procedural technicality
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