The Enlarged Board of Appeal previously decided that holding oral proceedings in-person was the “gold-standard” and therefore that in-person hearings should be the default option outside of a general state of emergency (for example, during the Covid-19 pandemic).

However, the Board of Appeal has now found in T 1158/20 that this “gold-standard” no longer applies. According to the Board of Appeal, in view of the increased level of experience with the technology gained over the last few years and the improved stability of videoconferences, oral proceedings conducted by videoconference are often now equivalent to an in-person hearing. Consequently, the Board of Appeal considered that oral proceedings by video conference can be used even in the absence of consent from the parties and outside of a general state of emergency.

G1/21

In a previous case before the Enlarged Board of Appeal, it was found in G1/21 that while oral proceedings by videoconference meet the requirements to enable parties’ right to be heard, videoconferences could not provide the same level of communication that is possible when all of the participants are present in the same room. The unfamiliarity with the technology on behalf of the parties and the deciding body as well as the need to cope with technical problems provide a distraction from the issues being discussed.

As a result, the Enlarged Board of Appeal held that the limitations of video technology make videoconference suboptimal as a format for oral proceedings. While oral proceedings could be conducted by videoconference without the consent of the parties when in-person oral proceedings were not available (for example, due to the Covid-19 pandemic), in-person oral proceedings represented the gold-standard and should be the default option in the absence of such disruption.

T 1158/20

Now however, in its decision of 22 November 2022, the Board of Appeal took a different view, stating that oral proceedings held by videoconference are often equivalent to a hearing in person and so can be used both without the parties’ consent and in the absence of a general state of emergency.

In the decision, the Board of Appeal set out that since G1/21 the Boards of Appeal and the parties have had extensive experience with videoconferences and that the improvements in technology now allow stable videoconferences with high-quality picture and sound to be conducted. Accordingly, oral proceedings by videoconference are no longer as far from in-person hearings as they were when G1/21 was issued.

Consequently, the Board of Appeal considered that oral proceedings in person can often be considered equivalent to oral proceedings by videoconference such that the gold-standard of in-person hearings no longer applies. Oral proceedings by videoconference may therefore be used without the consent of the parties even outside of times of emergency.

Conclusion

Until now, EPO Boards of Appeal have justified holding oral proceedings by videoconference on the basis that the Covid-19 pandemic was still ongoing, impeding parties’ ability to conduct in-person hearings. T 1158/20 however represents the first time since G1/21 that the Boards of Appeal have considered the situation outside of the general state of emergency. Notably, this decision comes to a different conclusion about the suitability of videoconferences for conducting oral proceedings and the Board of Appeal has justified this difference on the basis of increased experience with oral proceedings.

We could well see further Boards of Appeal dealing with this question, and possibly a referral to the Enlarged Board of Appeal given that the use of oral proceedings by videoconference without the consent of the parties’ remains a controversial issue.

We are well-equipped to carry out oral proceedings by videoconference and have extensive experience in doing so. If you have any questions about oral proceedings by videoconference, check out our Guide to ViCo at the EPO on our website or speak to your D Young & Co representative: dycip.com/vicoguide.