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More Evidence the EPO Want to Hold all Hearings by Vi-CO?

By Joanna Deas, Partner

In G1/21, the EPO’s Enlarged Board of Appeal (EBA) held that in the absence of a state of general emergency (such as the COVID pandemic), in-person oral proceedings were the “gold-standard”. The EBA decided that in-person proceedings should be the default. In particular, the EBA commented that video technology “cannot yet be said to provide the level of communication which is possible when all participants are physically present in the same room”. The EBA also noted the technical difficulties associated with ViCo that may distract both the parties and the deciding body (r.38).

However, it has been my observation that the EPO are overwhelming preferring to hold all oral proceedings, and in particular appeal proceedings by Vi-Co. A recent case, T 1158/20 also confirms this observation of preference. In this case, the Board of Appeal concluded that oral proceedings by videoconference are equivalent to an in-person hearing.

“the situation has changed, and the boards but also the parties have had extensive experience with videoconferences and the tools involved. The technical requirements were met on the board’s side but also on the side of the representatives to allow for stable videoconferences with high-quality picture and sound such that holding oral proceedings by videoconference is no longer as far from the gold standard as it was when decision G 1/21 was taken.

On the contrary, in the board’s view, nowadays an oral proceedings held by videoconference is often equivalent to a hearing in person. This applies in this case in which, given there were no particular complexities, no limitations on the interaction between the parties and the board and on the opportunity for the parties to argue their cases by videoconference were apparent when using the available technology.

Therefore, the board concludes that even in view of decision G 1/21, oral proceedings by videoconference was in this case not only suitable but also represented an equivalent alternative to in-person oral proceedings.”

I agree to some extent with the Board on some of their points above. The quality of the Vi-Co proceedings does allow simple cases to be decided cost effectively and without the need for travel. However, I still believe that for complicated cases with lots of documents and multiple parties, in-person hearings are still the “gold-standard”, and an option should be provided for those who would prefer their cases to be handled this way.

This is for general information only and does not constitute legal advice. Should you require advice on this or any other topic then please contact or your usual HLK advisor.

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