The EPO’s Enlarged Board of Appeal has now issued its order regarding the legality of video conference hearings, although it is yet to publish the detailed reasons for the decision. The order maintains the status quo that the EPO has adopted during the Covid-19 pandemic, but does not dispel uncertainty about the law on video conference hearings beyond that. The Enlarged Board stated that “oral proceedings before the Boards of Appeal can, during a period of general emergency impairing the parties’ possibilities to attend in-person oral proceedings at the EPO premises, be held by videoconference even without the consent of the parties”. Thus they expressly approve the practice which has thus far been adopted by the appeal boards and the first instance divisions to hold hearings by video conference even without the consent of the parties, but they expressly avoid pronouncing on the question of whether such a practice would be legal in normal times. So this gives some clarity to the situation before the appeal boards for the next few months at least, and similarly to the extension of the pilot project being maintained by the first-instance divisions. At least for the next few months we can assume that all hearings will be by video conference unless there are strong reasons against that in a particular case.
Beyond these times of Covid disruption, we will have to await further developments. Perhaps the detailed reasoning of the Enlarged Board, not yet issued, will cast some light on the likely future.
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