Referral to the Enlarged Board of Appeal regarding legality of non-voluntary video conference appeal hearings to go ahead
Board of Appeal hearings by video conference (ViCo)
Further to all first instance examination and opposition oral hearings shifting to ViCo towards the end of last year, the EPO Boards of Appeal (who provide final and binding second instance decisions on European patents and applications) announced that, from 1 January this year, all Board of Appeal oral hearings (known as “oral proceedings” at the EPO) may also be conducted by ViCo. This can be done without the agreement of the parties concerned and is set to be formally adopted as new Article 15a in the upcoming update to the Rules of Procedure of the Boards of Appeal (RPBA).
Referral to Enlarged Board of Appeal
Dispensing with the need for the parties concerned to agree to the oral proceedings taking place by Vico is controversial and has led to a referral to the Enlarged Board of Appeal of the EPO. The Enlarged Board are responsible for ensuring uniform application of the law and deciding on points of law of fundamental importance. Questions can be issued to the Enlarged Board by a Board of Appeal at the request of a party to an appeal or of the Board’s own motion. In this case, at the request of one of the parties to the appeal concerned, the following question has been referred to the Enlarged Board:
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?"
Somewhat surprisingly, the party who requested the referral has now withdrawn this request. However, it seems the Board of Appeal in this case considers it a sufficiently important point of law that it has gone ahead with the referral of its own motion.
The controversy
To some, the ability of the Board of Appeal to hold oral proceedings by ViCo without the consent of all parties is good news. Oral proceedings by ViCo have proved hugely successful in the coronavirus pandemic and many in the patent profession see no reason to go back to compulsory in person hearings at the Board of Appeal’s offices in Haar (just outside Munich, Germany) when the pandemic is over. Others consider Article 116(1) EPC (which guarantees oral proceedings to a party if they request it) to mean oral proceedings in person and that forcing a party to attend oral proceedings by ViCo when they would prefer to attend in person amounts to a denial of their right to be heard.
Is the right to be heard denied by ViCo?
The Board seems to focus principally on the semantics of the legal provisions, whilst recognising that ViCo can be compatible with the right to be heard and to a fair trial. This recognition seems important and correct – indeed, the last 12 months have shown that ViCo oral proceedings can be very successful. The EPO and European patent firms have invested heavily in making this happen reliably and in a way familiar to users (e.g. through the EPO embracing the already-widely used Zoom platform for oral proceedings). In fact any other solution over the last year would be tantamount to a denial of the right to be heard.
And it seems right to continue all the good work that’s been done. If there is a very thin silver lining to this awful pandemic, it is surely the huge acceleration in uptake of remote working technology. Progress which would have otherwise taken years has instead taken only a few months. It would be a hugely wasted opportunity to simply regress to where we were as soon as the pandemic is over.
If anything, making ViCo oral proceedings the norm will surely increase (not diminish) parties’ right to be heard. Removing the limits imposed by available physical space will help reduce the Board of Appeal’s backlog of cases, meaning justice can be served more quickly and parties (and the public) given more legal certainty
The other arguments in favour have been rehearsed elsewhere but include cost effectiveness, accessibility, increased inclusivity, better training opportunities, reduced environmental impact and more. These all feed into improved access to justice; it is very difficult to argue that being able to reliably attend a hearing from anywhere in the world compared to being required to attend a physical hearing in Haar will negatively affect a party’s right to be heard. On the contrary, it is likely to make participation in oral proceedings easier for everyone, thereby significantly improving how the right to be heard enshrined in Article 116(1) EPC is enjoyed in practice.
Does it need to be compulsory?
The main sticking point seems to be the ability of the Board of Appeal to hold oral proceedings by ViCo without the consent of all parties to the proceedings. This arguably imparts greater power to the Boards of Appeal and it is therefore right that the legality of this is properly considered.
On balance, we feel the practicalities warrant allowing the Board of Appeal to have this power. If the Board of Appeal are not able to hold oral proceedings by ViCo unless all parties to proceedings agree, there will likely be many instances of oral proceedings which are blocked from taking place by ViCo due to withheld consent from a single party. This could be for strategic reasons which benefit a particular party (e.g. a patentee looking to delay a decision confirming the revocation of their patent) and severely undermines the advantages of enabling ViCo oral proceedings in the first place.
The argument that being denied attendance at oral proceedings in person violates the right to be heard also seems to wrongly trivialise the resources required to attend oral proceedings in person in the first place. The time, effort and cost required to attend oral proceedings in person are significant and are arguably far more significant than the one-time investment required in obtaining decent ViCo equipment. Forcing parties to attend oral proceedings by video conference is therefore no more of a denial of the right to be heard than forcing parties to attend oral proceedings in person, and is arguably less of a denial of that right. And, frankly, if, after 12 months of working remotely and communicating with colleagues solely through video calls, your current representative thinks they will be unable to effectively argue your case by ViCo, maybe it’s time you shopped around for alternative representation.
Of course, there should be safeguards to reduce the risk of procedural abuse. Oral proceedings in person may be appropriate in certain circumstances (e.g. particularly technically or legally complex cases). However, there are already provisions in place for this for oral proceedings before the Opposition Division (e.g. parties needing to provide serious reasons why consent for ViCo oral proceedings is being withheld and the Opposition Division needing to give reasons if a request for oral proceedings to be held in person is refused) and we think similar provisions could easily be adopted by the Boards of Appeal. This would allow the benefits of widely adopted ViCo oral proceedings to be realised whilst also preserving the possibility of in person oral proceedings when this truly matters.
Conclusion
Contrary to harming the right to be heard, we feel making video conference oral hearings the norm at the EPO (including at the Boards of Appeal) will help improve the right to be heard for all EPO users.
We’re in the technology business. We’re in the legal business. We should therefore be embracing new technology which helps access to justice.
We await the Enlarged Board’s decision.
For more information please contact Arun or your usual Kilburn & Strode advisor.