The President of the EPO has submitted written observations to the Enlarged Board of Appeal on case G 1/21, “Oral proceedings by videoconference”.

The appeal concerns the question whether the conduct of oral proceedings by videoconference is compatible with the right to oral proceedings as enshrined in Article 116(1) of the European Patent Convention if not all of the parties to the proceedings have given their consent.

The President submits that proceedings by videoconference has become an indispensable measure, ensuring legal certainty of the European patent grant and opposition process. In the President’s view, the question referred is admissible as it is important that it is resolved to ensure legal certainty. It is also in the interest of the users of the European patent system, general public and the EPO.

The President says that, irrespective of party consent, the compliance of oral proceedings by videoconference is “beyond doubt”. Construing Article 116 EPC in line with general principles of treaty interpretation, the President contends that Article 116 does not prescribe a specific form of oral proceedings and exclude other forms, such as videoconference. Further, all substantive requirements of Article 116 are met when oral proceedings are held by videoconference and conducting oral proceedings this way therefore complies with Article 116(1). Further, case law of the EPO supports the concept of oral proceedings by videoconference being consistent with Article 116.

As for the issue of consent, the decision as to the form in which oral proceedings are held lies with the competent department. Accordingly, the question of whether oral proceedings can be conducted in the form of a videoconference cannot depend on the consent, waiver or similar procedural declaration of a party. To access the submissions in full, click here.