7. Conduct of oral proceedings

In the communications concerning oral proceedings before the boards of appeal entitled "Restrictions due to the coronavirus (COVID-19) pandemic and introduction of video-conferencing technology in appeal proceedings", published on the website of the Boards of Appeal on 6 May, 15 May, 25 May 2020 etc. the Boards of Appeal informed the public of the possibility of conducting oral proceedings before the board using videoconferencing technology, which, however, would require agreement from all parties. According to new Art. 15a RPBA 2020, which entered into force on 1 April 2021, the boards may conduct oral proceedings by videoconference. The agreement of the parties is not required. See also the communications from the Boards of Appeal of 15 December 2020 and 24 March 2021, and the referral to the Enlarged Board of Appeal pending under ref. No. G 1/21. In T 1378/16 the oral proceedings that took place on 8 May 2020 were the first held by videoconference (ViCo) in the history of the boards of the appeal. Unlike some national legal systems, the EPC does not stipulate explicitly the form(s) in which oral proceedings under Art. 116 EPC are to take place. For these reasons, the board considered it appropriate to address briefly the legal basis for oral proceedings within the meaning of Art. 116 EPC. It reasoned as follows: In the past, the boards have rejected requests for oral proceedings to be held by videoconference, mainly on the grounds that there was no "general framework" to this effect. In particular, no provision was made for suitable ViCo rooms and for the public to attend such ViCo-based hearings (see e.g. T 1266/07, T 2068/14). At the same time, the boards have held that Art. 116 EPC does not mandate oral proceedings taking place with the physical presence of the parties. As pointed out in T 2068/14, "while a video conference does not allow such direct communication as the face-to-face meeting involved in conventional oral proceedings, it nevertheless contains the essence of oral proceedings, namely that the board and the parties/representatives can communicate with each other simultaneously". Hence, several boards have considered that it was within their discretion to decide whether or not to select this form for the parties' oral submissions (T 2068/14, T 195/14, T 932/16). The present board agreed with this interpretation of the legal framework. Hence, oral proceedings held by ViCo are not excluded by the EPC and fulfil the requirements for holding oral proceedings within the meaning of Art. 116 EPC. The EPC only requires that the public character of the proceedings be ensured (Art. 116(4) EPC). The form in which the parties orally present their arguments – with or without physical presence – is not predetermined by Art. 116 EPC. Indeed, and in contrast to the circumstances under which the decisions mentioned above were issued, the boards of appeal now have at their disposal suitable rooms at their premises for ViCo-based hearings. Furthermore, appropriate provisions have been made for the public to attend such hearings. T 492/18 dealt with the issue of the attendance of an accompanying person by means of video connection. The appellant requested that the oral proceedings be held by way of videoconference, or if this were not allowed, that a member of the appellant's patent department participate in them by video connection. The respondent did not consent to the oral proceedings being held by videoconference. Therefore, the board refused the request for the video conference, given the lack of agreement of the respondent and given that travel within Germany was still possible. The oral proceedings took place in person. The board stated that the possibility of holding oral proceedings by videoconference was predicated on the boards' ability to offer the necessary technical facilities. These technical facilities must be under the continued control and supervision of the board. To the extent that it was technically feasible, the board must be in the position to control who was participating in the oral proceedings, and to establish that all participants could be seen and heard properly by all persons attending, while also ensuring that it was clear to all who was attending the oral proceedings. These conditions were seen as necessary for the oral proceedings held by videoconference to be perceived as equivalent to usual oral proceedings held at the premises of the Office with the parties being physically present. Additionally, at the time the decision was taken, the technical facilities of the boards of appeal were primarily geared to all parties participating remotely. Facilities for holding oral proceedings in mixed format, with members of a party attending at the Office's premises and other members attending remotely, were not available to the board for the oral proceedings. For these reasons, the board was not able to accede to the appellant's request.