G 1/21: hearing on using ViCo postponed for entirely non-ViCo-related reasons

G 1/21: hearing on using ViCo postponed for entirely non-ViCo-related reasons

Last Friday, the Enlarged Board of Appeal (EBA) heard the case on G1/21 “Oral proceedings by videoconference”. However, the hearing was postponed for procedural reasons before there was a chance to even start discussing videoconferencing (ViCo). 
It is a shame that this case is being held-up by procedural problems, but the EBA has moved quickly and the new hearing has been rescheduled for 2 July 2021.
Here is a summary of what’s happened so far:

What happened before the hearing:

  • The question to be answered by the EBA was “Is the conduct of oral proceedings in the form of a videoconference compatible with the right to oral proceedings as enshrined in Article 116(1) EPC if not all of the parties to the proceedings have given their consent to the conduct of oral proceedings in the form of a videoconference?” In effect, the question is whether the EPO can decide to use ViCo, or does it need to get permission from the parties first. 

  • The partiality (or at least the perception of partiality) of the EBA on using ViCo had been questioned in the lead-up to the hearing, with several members of the EBA being replaced in the run up, including the Chair of the EBA. 


What happened in the hearing:

  • The first issue discussed was whether new partiality arguments filed by the appellant a couple of days before the hearing were admissible. This was debated for several hours (away from the viewing public).

  • The hearing went back into public view after lunch and the EBA announced that the new partiality objections were not admissible. However, the appellant then complained that some documents on file had only been provided to them a few days before the hearing, meaning they had not had time to review and respond to them. In the appellant’s view, this would violate their right to be heard under Article 113(1) EPC unless the hearing was postponed.

  • After several more breaks, the EBA agreed to postpone the hearing and gave the appellant one month to review and respond to the late-delivered documents. 


Post-hearing analysis:

  • The appellant now has another chance to reply in writing, and the hearing has been rescheduled for 2 July 2021.

  • Amusingly, in a hearing that is all about the procedural efficiency of the EPO and the suitability of ViCo for use in hearings, it is the late delivery of documents (rather than problems with webcams and headsets) that has led to a postponement.

For more information please contact your usual Kilburn & Strode advisor.

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