7.3. Oral proceedings held by videoconference
In T 1378/16 the oral proceedings that took place on 8 May 2020 were the first held by videoconference in the history of the boards of the appeal. The board considered it appropriate to address the legal basis for oral proceedings within the meaning of Art. 116 EPC: In the past, the boards have rejected requests for oral proceedings to be held by videoconference, mainly on the grounds that there was no "general framework" to this effect, as no provision was made for suitable ViCo rooms and for the public to attend ViCo-based hearings (see e.g. T 1266/07, T 2068/14). At the same time, the boards have held that Art. 116 EPC does not mandate oral proceedings taking place with the physical presence of the parties. Several boards have considered that it was within their discretion to decide whether or not to select this form for the parties' oral submissions (T 2068/14, T 195/14, T 932/16). See also T 1879/16.
T 492/18 dealt with the issue of the attendance of an accompanying person by means of video connection. The oral proceedings took place in person. The board stated that the possibility of holding oral proceedings by video conference was predicated by the boards' ability to offer the necessary technical facilities. At the time the decision was taken, facilities for holding oral proceedings in mixed format, with members of a party attending at the Office's premises and other members attending remotely, were not available to the board for the oral proceedings. For these reasons, the board was not able to accede to the appellant's request.
T 2320/16 was the first case before the boards of appeal for which oral proceedings by videoconference were held without the agreement of a party to the appeal proceedings (this decision predated T 1807/15). The board stated that Art. 116 EPC did not define the exact form of oral proceedings, other than the proceedings being oral in nature. In particular, it did not explicitly exclude oral proceedings by videoconference.
In T 328/16 the board refused a request, filed after the oral proceedings by videoconference had been opened, for their cancellation and the scheduling of a new date for oral proceedings attended by all parties in person. It informed the parties that switching from in-person oral proceedings to oral proceedings by videoconference was not only in the interests of keeping all parties safe in view of what was happening with the COVID-19 pandemic but also in line with the protective measures in place in the European Patent Organisation's host state and throughout the rest of Europe. Granting the request would have delayed the proceedings considerably, especially given that oral proceedings initially planned for 8 May 2020 had already had to be rescheduled as a result of the pandemic. The board had discretion to hold oral proceedings under Art. 116 EPC by videoconference either at a party's request or, as here, at its own instance if it considered this expedient. The boards' practice since May 2020 of conducting oral proceedings by videoconference had been codified in new Art. 15a RPBA 2020.
In T 2030/18 the board held that it was justified to hold oral proceedings by videoconference following the Enlarged Board of Appeal's order in G 1/21 of 16 July 2021 date: 2021-07-16 (OJ 2022, A49) despite the appellant having argued in favour of oral proceedings being held in-person. In T 2817/19 in application of the order of the Enlarged Board of Appeal in case G 1/21 date: 2021-07-16, which allowed the conduct of oral proceedings before the boards of appeal in the form of a videoconference during a general emergency even if not all of the parties to the proceedings had given their consent thereto, the respondent's request that the oral proceedings be held in person was rejected.
In T 245/18 the appellant (opponent) challenged the board's decision to go ahead as planned with holding the oral proceedings by videoconference even though one of the parties had not consented, instead of staying the proceedings until the Enlarged Board of Appeal had issued its decision in G 1/21 date: 2021-07-16. The board held that by setting a date under Art. 15(9) RPBA 2020, instead of announcing its decision straight away, it had ensured that, in this particular case, its decision to hold the oral proceedings by videoconference would not conflict with the Enlarged Board's then still pending decision. Had the outcome of the since issued decision been different, the board, instead of taking a final decision, could have set a new date for oral proceedings and reopened them. The clarification in G 1/21 date: 2021-07-16 that it was at any rate permissible to hold oral proceedings by videoconference without a party's consent in emergency situations was, the board found, applicable here. There had undoubtedly been such an emergency at the time at issue in this case, given that the COVID-19 pandemic declared in March 2020 had been far from over and was still entailing significant travel restrictions in May 2021. It was therefore not necessary to reopen the oral proceedings.