a) Compliance with G 1/21 – holding oral proceedings by videoconference without a party’s consent 

In T 2817/19 in application of the order of the Enlarged Board in case G 1/21 date: 2021-07-16, which allowed the conduct of oral proceedings before the boards of appeal in the form of a videoconference during a general emergency even if not all of the parties to the proceedings had given their consent thereto, the respondent's request that the oral proceedings be held in person was rejected.

T 1197/18 is another example of a decision issued at the time when only the order in G 1/21 date: 2021-07-16 was available. In T 1197/18 the board concluded that the pandemic was a general emergency and that, as had been ruled in G 1/21 date: 2021-07-16, its holding oral proceedings via a videoconference in these circumstances was compatible with the EPC, even if the appellant had not given their consent.

In T 2474/17 the board stated that the conclusion to hold the oral proceedings as a videoconference was in line with Art. 15a(1) RPBA 2020 and in line with G 1/21 date: 2021-07-16. According to the Enlarged Board's reasoning, the pandemic was a "general emergency impairing the parties' possibilities to attend in-person oral proceedings at the EPO premises", thus constituting "good reasons" for the conduct of oral proceedings by videoconference, despite the appellant's explicit wish for in-person oral proceedings. The continued delay of holding oral proceedings during a pandemic was further ground to overrule a party's wish to hold oral proceedings in person (as to the argument of a continued delay, see also T 934/18, T 541/17, T 1296/17). The board also held that the complexity of the case was not such that a videoconference would be inadequate (as to the argument concerning the substance of a case, see also e.g. T 934/18 and T 541/17).

In T 1791/19 the board decided to hold oral proceedings by videoconference in view of the COVID-19 pandemic situation, the then ongoing lockdown and general travel constraints. Just before the board announced the order, the respondent (patent proprietor) stated that it had never given its consent to oral proceedings by videoconference. The board held that it was incumbent on the respondent to raise issues and file requests at the appropriate time so that such requests could be given due consideration. Otherwise, a party could wait to raise such an objection until faced with an adverse decision, but refrain from doing so when faced with a favourable decision. This appeared to the board to be inequitable. The board took the view that when it ordered the hearing to be held by videoconference, it was within its discretionary powers under Art. 15a RPBA 2020 as qualified by decision G 1/21 date: 2021-07-16.

In T 250/19 the appellant (opponent) had requested during oral proceedings by videoconference that they be adjourned so that they could be held with the parties physically present. Citing Art. 15a(1) RPBA 2020 and G 1/21 date: 2021-07-16 in particular, the board observed that the board's decision on the format of the oral proceedings was a discretionary one. Holding oral proceedings by videoconference was a "suitable" alternative to holding them in person if it was compatible with parties' right to be heard (G 1/21 date: 2021-07-16, points 33 to 43 of the Reasons). The board pointed out that the compatibility of oral proceedings by videoconference with a party's right to be heard under Art. 113 EPC did not depend on whether that party had consented to their being held as a videoconference but only on whether the party was given sufficient opportunity to set out its position and make its case (see also T 1624/20).

In T 934/18 the board rejected appellant 2’s request for in-person oral proceedings. The board held that "good reasons" for which parties can be denied in-person hearings according to G 1/21 date: 2021-07-16 existed, because the COVID-19 pandemic was not yet over and there were still limitations and impairments such as quarantine obligations, access restrictions at the EPO premises and other health-related measures. In addition, the board noted that oral proceedings in the present case had already been postponed once. A continued postponement was to be avoided to prevent a further delay in deciding the appeal. Moreover, the board did not consider that in substance this case pertained to matters that required in-person oral proceedings (for similar reasoning concerning the substance of a case, see also e.g. T 2474/17 and T 541/17).

In T 2791/19 the board decided to hold the oral proceedings as a videoconference without the appellant's consent. The board's reasons for this included that Art. 15a RPBA 2020 expressly allowed the boards to hold oral proceedings by videoconference, even on their own initiative. Moreover, as the Enlarged Board had ruled in G 1/21 date: 2021-07-16, a hearing held in the form of a videoconference qualified as oral proceedings within the meaning of Art. 116 EPC. In the board's view, the circumstances in the case in hand (a rising number of new infections in the Munich area) justified not holding the oral proceedings in person. It had therefore decided to exercise its discretion to hold the oral proceedings by videoconference even without the appellant's consent as a way of protecting all the parties.

In T 1158/20 the oral proceedings were held by videoconference without the appellant’s consent. The board observed that from the wording of Art. 15a(1) RPBA 2020, it was evident that it had discretion to decide whether to hold oral proceedings by videoconference. The board further saw no conflict with G 1/21 date: 2021-07-16. Irrespective of this, the board also assessed whether oral proceedings by videoconference could be considered an equivalent alternative to an in-person hearing (stated to be the "gold standard" in G 1/21 date: 2021-07-16). The board concluded that even in view of G 1/21 date: 2021-07-16, in this case oral proceedings by videoconference had been not only suitable but also represented an equivalent alternative to in-person oral proceedings. For more arguments in T 1158/20 on videoconference as an "equivalent alternative", see in this chapter III.C.7.3.4d); for arguments on the pandemic situation, see in this chapter III.C.7.3.4c); and for arguments on technical aspects of videoconferencing, see in this chapter III.C.7.3.4e).

Most of the reasoning in T 758/20 is comparable to that in T 1158/20 (above). Moreover, the board emphasised that it did not interpret G 1/21 date: 2021-07-16 as meaning that it was for the party to choose the format of the oral proceedings. The decision on whether good reasons justified a deviation from the preference of a party to hold the oral proceedings in person was a discretionary decision of the board summoning it to the oral proceedings. According to the board, the order in G 1/21 date: 2021-07-16 could not be read as restricting the possibility of summoning for oral proceedings by videoconference contrary to the will of one party to only when there is a general emergency. For more arguments, see in this chapter III.C.7.3.4b), III.C.7.3.4c) and III.C.7.3.4d).

In T 1624/20 the board had changed the format of the oral proceedings to a videoconference in view of the pandemic situation (COVID-19) prevailing at the time. Challenging this new format, the appellant argued in particular that the emergency situation related to COVID-19 had come to an end and so imposing a videoconference was at odds with G 1/21 date: 2021-07-16, that there had been no official announcement by a government agency and that Art. 15a RPBA 2020 could not be invoked because it was incompatible with G 1/21 date: 2021-07-16 in the case at hand. Referring to the wording of Art. 15a RPBA 2020, the board explained that a videoconference was not incompatible with G 1/21 date: 2021-07-16 in this case. According to point 50 of the Reasons in G 1/21 date: 2021-07-16, it was for the board to assess whether there was a general emergency impairing the parties' ability to attend in person. There had been special circumstances that justified the decision not to hold the oral proceedings in person.

In T 2526/19 the board changed the format of the oral proceedings from in-person to videoconference, in view of the pandemic developments in Bavaria at the relevant time. The risk for an infection for all participants was to be weighed up against the respondent's reservations as to holding oral proceedings by videoconference, the complexity of the case, and the suitability of the case for a hearing in this format. The board came to the conclusion that a hearing by videoconference was indeed a suitable format for such proceedings under Art. 15a(1) RPBA 2020. Moreover, the compliance of Art. 15a RPBA 2020 with the EPC had not been questioned by the Enlarged Board in case G 1/21 date: 2021-07-16, whether or not a "general emergency" applied. Art. 15a RPBA 2020 had thus remained applicable, without any qualification, to these and future appeal proceedings.