The European Patent Office has been planning to make oral proceedings by videoconference (in the following: video proceedings) the "new normal" even after the end of the current pandemic. In regard to appeal proceedings, a new Article 15a has been introduced into the Rules of Procedure of the Boards of Appeal by a decision of the Administrative Council. Art. 15a(1) stipulates that "The Board may decide to hold oral proceedings pursuant to Article 116 EPC by videoconference if the Board considers it appropriate to do so, either upon request by a party or of its own motion". In the proceedings G 1/21, which are currently pending before the Enlarged Board of Appeal, the referring Board has referred the following question to the Enlarged Board for decision:
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?
Hoffmann Eitle is of the firm view that parties have a fundamental right to oral proceedings in person, and that video proceedings therefore require the consent of all parties to the proceedings. Video proceedings can be a useful option for a party, but should not be made mandatory. Only under very exceptional circumstances, e.g. in the case of a pandemic and if one of the parties appears to refuse its consent to video proceedings with the intention to abuse the proceedings, may an exception to this rule be conceivable. Hoffmann Eitle have therefore joined with six other renowned patent attorney firms and filed a joint amicus curiae brief to the EPO, accompanied by a legal opinion of Justice Professor Dr. Siegfried Broß, who has served as a judge at both the German Federal Constitutional Court and in the patent panel of the Federal Court of Justice. The brief (in German only) can be found here.
More than 20 amicus curiae briefs have meanwhile been published on the EPO website. The vast majority of them suggests that oral proceedings should not be held in the form of a videoconference unless all parties have agreed to such conduct.