16 July 2021

EPO Enlarged Board issues order in G 1/21

By a press release earlier today, the Enlarged Board announced its decision on the compatibility of oral proceedings by videoconference with the rights of parties under Article 116 EPC, where not all of the parties have consented to that format.

The Enlarged Board has limited itself to answering the referred question in relation to proceedings before the Boards of Appeal (i.e. the situation dictated by new Article 15a RPBA) and to the presence of a ‘general emergency’. In those situations, the ruling of the Enlarged Board states that oral proceedings by videoconference held without the consent of the parties during a period of “general emergency impairing the parties’ possibilities to attend in-person oral proceedings at the EPO premises” are compatible with rights under the EPC.

This arguably leaves open the question of how a ‘general emergency’ is to be defined, and whether this requires a state of general emergency to be formally declared. Nevertheless, the EPO in its own press release this morning (Friday 16 July 2021) has stated that oral proceedings by videoconference will continue to be scheduled in accordance with its current practice, due to the ongoing pandemic situation in the EPO Contracting States and beyond.

We now await the formal reasoned decision, which may yet have implications for the scheduling of oral proceedings by videoconference before the departments of first instance (Examination and Opposition Divisions) as well as the Legal Division and Receiving Section. Indeed, the EPO has indicated that it will be carefully analysing the reasons for the decision once issued for any such implications.

For further information relating to the G 1/21 case up to this point, read our previous article here.