The G1/21 - ?Friends of the courts“ – Amicus Curiae

As can be quickly learned while studying the EPC for the EQE, G-Decisions have a weighty importance as case law of the EPO. The aim of these decisions and opinions of the Enlarged Board of Appeal (EBoA) is “to ensure uniform application of the law" and to clarify or interpret important points of law in relation to the European Patent Convention.  

Many of these decisions were of fundamental importance for the future interpretation of points of laws; e.g. (Partial) Priority G2/98 and G1/15; Disclaimers G1/03, G2/10, G1/16; and more recently G1/19 “Patentability of computer implemented simulations “. Many of these decisions were also criticized by observers and were reasons for arguments. 

We highly doubt, however, that those decision come close to having the polarizing effect of the current G1/21 decision with respect to Video Conference (ViCo) as Oral Proceedings (OP) and whether the EPO can hold ViCo as OP without all parties’ consent.

The road to G1/21

For those who missed the latest development – here is a short and simplistic recap of the relevant events leading to the referral:

• Because of the Corona Pandemic the EPO started having OP solely via ViCo in spring 2020;
• EPO introduced a new rule of procedure of the Boards of Appeal (RPBA). According to the new Article 15a RPBA the BoA can hold OP by ViCo whenever “the Board considers it appropriate to do so” -emphasis added.
•  The referral  for G1/21 was made by the Technical Board of Appeal 3.5.02 in an appeal against a decision from the Opposition Division. In-person OP should have been held on the 8th February 2021.
• In January 2021, the proprietor requested to postpone the OP in view of the new travel restrictions due to the pandemic. More importantly the party did not give its consent for an OP by ViCo.
• A few weeks later the parties were informed that the oral proceedings would take place on 8th February via video conference.
• At this point the now appellant also stated that video conferencing was unsuitable for this case.
• The OP was held anyways via ViCo as scheduled – although neither of the parties in the proceeding consented to OP by ViCo. A referral to the EBoA was requested. 
• The BoA agreed that a referral should be forwarded to the EBoA.
• The EBoA appointed OP for discussing the Referral, to be held on the 28 May 2021. Funnily enough, the EBoA informed the parties that the OP discussing ViCo in OP will be held by ViCo. 

Of course much more happened around this case, e.g several letters from the President of the EPO and the President of the EBoA , some T decisions adopting new Art. 15a RPBA even before they entered into force (01 April 2021) and many public outcries for and against this new Article. 

The EBoA invited the public and the President of the EPO to send comments on the referral G1/21. The deadline for doing so was yesterday April 27, 2021 (funnily enough it is a day on which the EPO in The Hague is closed due to Kingsday – Does R134 EPC hold?). 

The question and the opinions

The referred question is the following: 

“Is the conduct of oral proceedings in the form of a videoconference compatible with the right to oral proceedings as enshrined in Article 116(1) EPC 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?”

According to the register a total of 44 (UPDATED - 30.04.2021) Amicus Curiae have been filed within the acceptable time limit. A cursory review appears to show

• 27 (UPDATED 30.04.2021) opinions in favour of responding to the above question in the negative;
• 7 opinions in favour of responding to the above question in the affirmative; and
• 10 (UPDATED - 30.04.2021) who either abstain from directly responding or had general comments on advantages and disadvantages of a positive/negative response and in particular when OP should be held as ViCos.

Some of the arguments for a negative answer to the referral and hence against holding OP as ViCo against the will of the parties can be summarised as follows: 

• It is not compatible with Art 116 EPC;
• It goes against Article 6 of the European convention on Human Rights (ECHR) – right of a fair and public trial; 
• Timely decisions should not come at the expense of quality;
• Incomparability of ViCo against in-person proceedings; 
• General ViCo security and connectivity issues.

A major aspect which is commented in most “negative” Amicus Curiae is the composition of the EBoA for this referral as it appears as if the chairman and other members of the referral were on the drafting panel of the new Article 15 of the RPBA (some even making public positive comments with regards to the changes) – Lack of impartiality is therefore objected!

Furthermore, by holding the referral though ViCo when discussing the legality of ViCos in OP allegeadly already shows the bias of the EBOA.

Some of the arguments for an affirmative answer to the referral and hence for holding OP as ViCo against the will of the parties can be summarised as follows: 

• Minimising the risk of postponements by an opposing party due to non-acceptance of ViCo; 
• Minimising the backlog of the EPO;
• Climate issues;
• Cost issues.

In addition to the “affirmative” Amicus Curiae, the President of the EPO also gave his comments, which can be summarized best by quoting one of his arguments: 

“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”

Consequently, it appears as if the President of the EPO is in favour of the new article. 

Many more comments were raised in Favour and against ViCos and we do recommend for anybody interested to read at least some of the Amicus Curiae. 

Conclusion

The showdown is in exactly a month and the repercussion any decision will have might be of extreme importance for the whole IP community. Corona changed many old patterns into new ones, but is every change a good change?

We at Fleuchaus&Gallo will continue eagerly following the developments... especially after negative experiences like today, in which during a ViCo OP in front of the Opposition Divisional technical problems both on the proprietor and on the OD side resulted in at last 5 interruptions, in addition to absurd scenes of us trying to show prototypes on cameras.

We will therefore certainly attend as public the Oral proceeding for the referral G1/21 online on May 27, 2021... of course hoping that the system won’t crash…