As previously reported, the following question was referred to the EBA on 12 March:
Does the EPC, specifically Article 116 EPC, allow oral proceedings to be conducted via videoconference against the will of the parties?
The key question underlying the referral is whether Article 116 EPC should be interpreted as guaranteeing the right to an “in-person” oral proceeding, or whether a video conference may be considered to fulfil the requirements for an oral proceeding.
For the full background, see our previous article(s).
On June 16 the following order was given as a result of the second oral proceedings:
During a general emergency impairing the parties' possibilities to attend in-person oral proceedings at the EPO premises, the conduct of oral proceedings before the boards of appeal in the form of a videoconference is compatible with the EPC even 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.
In line with an initial comment of the chairman of the EBA during the second oral proceedings and contrary to the pleading of the representatives of the president of the EPO the order is not of general nature. The answer to the referred question is limited to emergency situations and to the practice of the boards of appeal. It has to be seen how the compatibility of Article 15a RPBOA, which is not limited to the pandemic, with Article 116 EPC has to be interpreted in the future. Further, the practice of the first instance proceedings is not clarified. It appears the referral question is only answered within the context of the case underlying the referred question and not in a general nature as desired by the public and the EPO. It will be important to see the reasoning for the order which is still outstanding. Hopefully further clarification can be derived therefrom. Needless to say that an unclear situation is very unhelpful for the users of the EPC.