EPO’s written decision in G 1/21 explains reasoning behind emergency use of video conference oral proceedings

The EPO’s Enlarged Board of Appeal yesterday released its full written decision on G1/21. This case discusses whether oral proceedings can be held by video conference without the consent of all parties. The full written decision can be found here.

The decision provides the reasoning behind a preliminary order issued in July in which the Enlarged Board decided that oral proceedings before Boards of Appeal can be conducted by video conference without the parties’ consent during a “general emergency”, such as the Covid-19 pandemic.

The Enlarged Board notes in the decision that, whilst video conferencing can ensure the essential features of oral proceedings before the Boards can be maintained, in person hearings are the “gold standard” and should be a default option. This default of in person proceedings can only be denied for “good reasons”. The Enlarged Board particularly points out that availability of conference rooms and interpretation facilities or intended efficiency gains would not constitute “good reasons”.

To hold oral proceedings other than in person there must be a suitable alternative available (i.e. video conferencing) and circumstances that justify the alternative (e.g. international and domestic travel restrictions, quarantine requirements and EPO access restrictions).

It therefore seems that, whilst at least some restrictions on travel remain, oral proceedings before the Boards of Appeal can still be held by video conference without the consent of all parties at the discretion of the Board of Appeal.

However, it also appears that the Enlarged Board is keen to stress the importance and value of holding oral proceedings in person under normal circumstances. Therefore, whenever the “general emergency” is deemed to be at an end, oral proceedings by video conference for Board of Appeal hearings may no longer be a default option in the absence of the consent of all parties.