ViCo oral proceedings: Waiting for the end of the general emergency (T 2791/19)

http://ipkitten.blogspot.com/2022/08/vico-oral-proceedings-waiting-for-end.html

According to even the most recent decisions from the Boards of Appeal of the EPO, we are still in a state of general emergency justifying holding oral proceedings by ViCo without the consent of all parties. However, as the heightened threat of COVID-19 slowly diminishes, the Boards’ justifications for continuing to enforce ViCo proceedings on users without their consent are becoming increasingly tenuous. 

Legal Background: ViCo oral proceedings 

Article 15a RPBA 2020, which entered into force on 1 April 2021, explicitly provides that a Board may hold oral proceedings whenever it considers it appropriate to do so (IPKat). In G 1/21, the EBA provided a lukewarm and heavily caveated acceptance of new Article 15a RPBA 2020 (IPKat). The EBA  particularly established that holding oral proceedings by ViCo is acceptable during a state of general emergency impairing the parties’ ability to attend proceedings in-person. However, the EBA also observed that the current standard of ViCo technology is suboptimal. As such, in-person proceedings should be the default form of proceedings in the absence of special circumstances such as travel restrictions imposed during a global pandemic. 

On zoom 

Implementation of G1/21

T 2791/19 related to an appeal of the decision to maintain the patent as granted. The appellant requested that oral proceedings be held in-person and not by ViCo. The appellant argued that the pandemic no longer constituted a state of general emergency impairing the parties’ ability to attend proceedings in-person. The appellant further argued that COVID-19 should now be regarded as a general life risk. The appellant also pointed out that there were no longer any significant restrictions on travel to the EPO. 

The Board of Appeal rejected the request for in-person proceedings, and proceedings were held by ViCo without the appellant’s consent on 26 July 2022. The Board of Appeal argued that the risk of COVID-19 infection in the Munich Region was still high enough such that the special circumstances outlined in G1/21 still applied:

“From the board’s point of view, this risk constituted an obstacle that objectively prevents a party from attending oral proceedings in person at the EPO’s premises […] [C]ontrary to the complainant’s assertion, an infection with the coronavirus cannot be regarded as a harmless disease, but on the one hand can result in a lengthy loss of work for the sick person. On the other hand, serious, sometimes even life-threatening courses cannot be ruled out – even if the representative of the opponent is not aware of any such cases in his personal environment.” (machine translation). 

When will the general emergency end?

The decision in G1/21 amounted to an invitation to Boards of Appeals and disgruntled parties to argue at length on whether there is still “a general emergency impairing the parties’ possibilities to attend in-person oral proceedings”. In this regard, the Boards of Appeal have adopted an increasingly broad definition of “general emergency” (T 2817/19, T 2791/19, T 2526/19, T 250/19). Even in the absence of specific travel restrictions, Boards of Appeal point to the impossibility of predicting whether there might be future restrictions by time of the scheduled date of proceedings (T 2817/19). 

There is a clear tension between the decision of the EBA in G1/21 that in-person proceedings are the gold standard, and the EPO’s obvious desire to hold more proceedings by ViCo. According to the Annual Report of the Boards of Appeal 2021, an “impressive” 76% of oral proceedings were held by ViCo in 2021. No statistics are provided on how many of these proceedings were held by ViCo without the consent of all the parties. 

The EPO has indicated that there will be a user consultation in Autumn 2022 on how new Article 15a RPBA 2020 is operating in practice, although the EPO has been known to sugar-coat the results of similar consultations rather than address user’s concerns. Nonetheless, when it comes to direct requests for in-person proceedings from appellants, the Boards of Appeal will not be able to avoid the guidance of G1/21 forever. 

Further reading

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