b) G 1/21 – applicability beyond a general emergency 

(i) Oral proceedings held in person without a party’s consent

In T 2432/19 oral proceedings took place in person in April 2023 despite the appellant’s (patent proprietor’s) request that the oral proceedings be held by videoconference. The board stressed that while it was evident from Art. 15a(1) RPBA 2020 that the board had discretion to decide whether to hold oral proceedings by videoconference, G 1/21 date: 2021-07-16 put certain limits on how this discretion was to be exercised. The board did not share the view expressed in T 618/21 with regard to Art. 15a RPBA 2020 that the exercise of discretion in deciding on the format of the oral proceedings was to be based on the criterion of the "appropriateness" of the format only. According to the board, G 1/21 date: 2021-07-16 had established general criteria which applied not only to a situation of general emergency, but were valid also in non-emergency times. It also followed from G 1/21 date: 2021-07-16 that parties did not have a right to a format that had deficiencies, i.e. parties could not force boards to hold oral proceedings by videoconference instead of in person. The board cited G 1/21 date: 2021-07-16, according to which in-person hearings are the "gold standard". Unlike the boards in T 758/20 and T 618/21, the board held that the situation had not changed since G 1/21 date: 2021-07-16. At the time of issuing the present decision, the parties relied on the same kind of hardware and software as were available at the time of G 1/21 date: 2021-07-16. Furthermore, no significant improvements that had increased "immediacy" to the level of in-person hearings could be recognised.

In T 1171/20 the oral proceedings in May 2023 were held in person, contrary to what the opponent (appellant) – without giving any reasons – had requested. The board stressed that the Enlarged Board had looked beyond a general emergency situation in G 1/21 date: 2021-07-16. The board did not share the view taken in T 618/21 that Art. 15a RPBA 2020 had "to be regarded as a follow-up provision to G 1/21 date: 2021-07-16". It therefore could not see how Art. 15a RPBA 2020 could restrict the Enlarged Board's findings in G 1/21 date: 2021-07-16 (see T 2432/19). It endorsed the finding in T 2432/19 that the circumstances in which in-person oral proceedings might be preferable were ones the board too could take into account when exercising its discretion under Art. 15a(1) RPBA 2020. Therefore, as a general rule, the board could also decide to hold oral proceedings in person at its own discretion and against the parties' wishes (see T 2432/19).

(ii) Oral proceedings held in mixed mode with parties’ consent

In T 1501/20 the oral proceedings were held in a "mixed-mode" format. On this point, the board observed that the decision in G 1/21 date: 2021-07-16 imposed certain limits on the exercise of discretion under Art. 15a(1) RPBA 2020. In doing so, the board followed the decision in T 2432/19, according to which Art. 15a(1) RPBA 2020 was to be interpreted restrictively in view of the decision in G 1/21 date: 2021-07-16. Art. 15a(1) RPBA 2020 thus offered no legal basis for holding oral proceedings as a videoconference against the wishes of one of the parties when there was no general emergency impairing the parties' ability to attend in-person oral proceedings on the EPO premises. The board also made it clear that it did not share the view taken in T 618/21 that Art. 15a(1) RPBA 2020 had "to be regarded a follow-up provision to G 1/21 date: 2021-07-16".