b) Consent to holding oral proceedings by videoconference no longer required 

T 2320/16 was the first case before the Boards of Appeal for which oral proceedings by videoconference were held without the agreement of a party to the appeal proceedings (this decision predated T 1807/15 date: 2021-03-12). The board referred in this context to the communication published on the website of the Boards of Appeal dated 15 December 2020, informing the public that from 1 January 2021 boards may conduct oral proceedings by videoconference even without the agreement of the parties concerned. The board stated that Art. 116 EPC did not define the exact form of oral proceedings, other than the proceedings being oral in nature. In particular, it did not explicitly exclude oral proceedings by videoconference. In the board's view, a prerequisite for oral proceedings was that the parties can see the members of the board and vice versa. It must be, at the same time, possible in real time for the board to interrupt or question the parties where necessary.

In T 328/16 the board refused a request, filed after the oral proceedings by videoconference had been opened, for their cancellation and the scheduling of a new date for oral proceedings attended by all parties in person. It informed the parties that switching from in-person oral proceedings to oral proceedings by videoconference was not only in the interests of keeping all parties safe in view of what was happening with the COVID-19 pandemic but also in line with the protective measures in place in the European Patent Organisation's host state and throughout the rest of Europe. Granting the request would have delayed the proceedings considerably, especially given that oral proceedings initially planned for 8 May 2020 had already had to be rescheduled as a result of the pandemic. The board had discretion to hold oral proceedings under Art. 116 EPC by videoconference either at a party's request or, as here, at its own instance if it considered this expedient. The boards' practice since May 2020 of conducting oral proceedings by videoconference had been codified in new Art. 15a RPBA 2020.

In T 2030/18 the board held that, despite the appellant having argued in favour of oral proceedings being held in person, it was justified to hold oral proceedings by videoconference since the COVID-19 pandemic was ongoing, the oral proceedings in the present case had already been postponed by a year and, also for reasons of procedural economy, a further postponement had not been appropriate. In the written reasoning of the decision dated 29 October 2021, the board also considered that the decision to hold the oral proceedings as a videoconference on 27 May 2021 had been in line with Art. 15a(1) RPBA 2020 and the Enlarged Board of Appeal's order and reasoning in G 1/21 date: 2021-07-16 published in the meantime.

In T 245/18 the appellant (opponent) challenged the board's decision to go ahead as planned with holding the oral proceedings by videoconference even though one of the parties had not consented, instead of staying the proceedings until the Enlarged Board had issued its decision in G 1/21 date: 2021-07-16. The board held that by setting a date under Art. 15(9) RPBA 2020, instead of announcing its decision straight away, it had ensured that, in this particular case, its decision to hold the oral proceedings by videoconference would not conflict with the Enlarged Board's then still pending decision. Had the outcome of the since issued decision been different, the board, instead of taking a final decision, could have set a new date for oral proceedings and reopened them. The clarification in G 1/21 date: 2021-07-16 that it was at any rate permissible to hold oral proceedings by videoconference without a party's consent in emergency situations was, the board found, applicable here. There had undoubtedly been such an emergency at the time at issue in this case, given that the COVID-19 pandemic declared in March 2020 had been far from over and was still entailing significant travel restrictions in May 2021. It was therefore not necessary to reopen the oral proceedings.

In T 1870/16 the board appointed oral proceedings to be held in a "mixed mode". The respondent attended the oral proceedings in person, whereas the appellant attended via videoconference. The respondent argued that in view of case G 1/21 date: 2021-07-16 pending before the Enlarged Board it would be "normal" and "proportionate" to await the outcome of this case. The board held that it was at its discretion whether or not a case was to be stayed pending a decision of the Enlarged Board in another case. The board could not see that the possibility for the respondent to present their case orally and to hear and respond to the case of the opponent was in any way negatively affected by holding mixed-mode oral proceedings, since the respondent was attending them in the presence of the board in the "normal" way. Given that the respondent's right to be heard at the oral proceedings in the physical presence of the board had been fully respected (Art. 113(1) EPC), the need for the board to hear and decide cases during the ongoing COVID-19 pandemic had outweighed any theoretical risk that the Enlarged Board may subsequently find the use of mixed-mode oral proceedings "illegal".