Summary: In the referral case G 1/21, proceedings are due to resume on 2 July 2021

At the EPO, proceedings are due to resume shortly in the case G 1/21. That's less than 24 hours from now.

This is the controversial high profile referral case where the legitimacy of mandatory ViCo hearings without the consent of the parties is being challenged.

The proceedings were adjourned following a first mandatory ViCo hearing held on 28 May.

The next hearing - likewise by mandatory ViCo - is due to take place on Friday, 2 July.

In the meantime, the Enlarged Board of Appeal has issued the minutes [PDF] of the previous hearing of 28 May and an interlocutory decision [PDF] on the partiality objections discussed during that hearing.

At the same time, the appellant has filed its response to the comments of the President of the Office.

There isn't really any new information in the minutes of the hearing of 28 May and the associated interlocutory decision merely confirms what was already suspected, namely the dismissal of the appellant's partiality objections relied on formalistic "legal sophistry" which were used by the Enlarged Board to avoid any engagement with the substance of those objections.

"At the same time, the appellant has filed its response to the comments of the President of the Office."The remainder of this update will focus on the response to the comments of the President of the Office submitted on behalf of the appellant by its representatives from the Munich-based law firm, Isarpatent.

The appellant's written submission [PDF] begins by recalling that well-founded concerns exist regarding the conduct of oral proceedings by videoconference without the consent of the parties. Such an approach is incompatible with the right to oral proceedings as enshrined in Article 116 (1) EPC.

Reference is made to the interlocutory decision T€ 1807/15 [PDF] which triggered the referral procedure G 1/21. This interlocutory decision provides a thorough analysis of the different approaches for interpreting the term "oral proceedings" as used in Article 116 EPC. These approaches include considering the case law of the Boards of Appeal, literal and systematic interpretations, supplementary means of interpretation such as the Travaux preparatoires of the EPC, teleological interpretation, subsequent agreements and dynamic interpretation.

None of these approaches leads to an interpretation of Article 116 EPC which would support the proposition that it is lawful to hold oral proceedings by videoconference without the consent of the parties.

According to the appellant's representatives, the comments by the President of the Office fail to dispel the aforementioned concerns.

"None of these approaches leads to an interpretation of Article 116 EPC which would support the proposition that it is lawful to hold oral proceedings by videoconference without the consent of the parties."The appellant's written submission proceeds to recapitulate the approaches for the interpretation of the term "oral proceedings" as used in Article 116 EPC based on literal and systematic interpretation, supplementary means of interpretation, teleological interpretation and dynamic interpretation.

Reference is made in this regard to an amicus curiae brief submitted by VPP [PDF] - a German association of "intellectual property experts" - together with an associated legal opinion authored by Alexandra Speer and Ronja Schregle of the Department of Corporate and Intellectual Property Law at the Technical University of Munich School of Management.

The appellant's representatives also address the question of "dynamic interpretation" which is a relatively recent addition to the Enlarged Board's repertoire of legal fudge techniques. Here the appellant argues that it is doubtful as to whether "secondary legislation" (in the form of an amendment to the Rules of Procedure of the Boards of Appeal) could provide "a valid ground for a dynamic interpretation limiting substantial procedural rights" which are anchored in the primary law of the European Patent Convention itself.

Specific reference is made in this regard to Article 164 (2) EPC which stipulates that "[i]n case of conflict between the provisions of this Convention and those of the Implementing Regulations, the provisions of this Convention shall prevail". This provision "has to be taken as a limitation of the legislative powers of the Administrative Council".

"...changes in member states' authorities and judicial systems do not go as far as holding videoconferences against the will of the parties to the proceedings or without their consent, not even in the exceptional circumstances of the coronavirus pandemic."The appellant's representatives also discuss the differences between proceedings before first instance examination and opposition Divisions and proceedings before the Boards of Appeal. Here it is explained that appeal proceedings are wholly separate and independent from the proceedings at first instance and their function is to give a judicial decision upon the correctness of a preceding decision taken by an administrative department.

In appeal proceedings the principle of party disposition is to be considered when summoning to oral proceedings. Thus, even if one would follow the President's comments that the administrative character of proceedings before examining and opposition divisions must be taken into account in the interpretation of Article 116 EPC, such considerations cannot apply to judicial appeal procedures before the Boards of Appeal. Such a different interpretation is supported by the different legal principles underlying the appeal proceedings.

The appellant's representatives also refer to "societal developments in the Contracting States, which might arguably justify adapting the interpretation of the term €«oral proceedings'". Here it is noted that the use and societal acceptance of videoconferencing technology has increased during the coronavirus pandemic.

"...if a party objects to oral proceedings being held using videoconferencing technology, the court cannot force the party to use that format."However, changes in member states' authorities and judicial systems do not go as far as holding videoconferences against the will of the parties to the proceedings or without their consent, not even in the exceptional circumstances of the coronavirus pandemic.

Section 128a of the German Code of Civil Procedure (Zivilprozessordnung), stipulates that courts can order proceedings to be held in the form of a videoconference. However, the court itself must sit in a courtroom, and the parties (or their representatives) are entitled to appear in the courtroom. Therefore, if a party objects to oral proceedings being held using videoconferencing technology, the court cannot force the party to use that format.

"...oral proceedings by videoconference without the consent of the party would violate the provisions of the German constitution."According to a legal opinion [PDF] by Prof. Siegfried Broß - a former judge at the German Federal Constitutional Court and long-time critic of the EPO's legal "no-man's land" of Battistelli - oral proceedings by videoconference without the consent of the party would violate the provisions of the German constitution.

Reference is also made to an amicus curiae brief submitted by Meissner Bolte [PDF], major German law firm specialising in the area of "industrial property right protection" which has been highly critical of the EPO's attempts to impose mandatory ViCo hearings.

The submission concludes by drawing attention to relevant decisions from national courts in Switzerland and France:

In Switzerland, the Federal Supreme Court (Schweizer Bundesgericht) recently decided that a lower court had no legal basis to order a video conference against the will of the parties. In particular, the Supreme Court ruled that it was not permissible to rely on the extraordinary situation resulting from the coronavirus pandemic as a justification for such measures.

In France, the Constitutional Court (Conseil d’État) decided that oral proceedings by videoconference without consent of the party amounted to "a serious and manifestly illegal infringement of ... the right to a fair trial".

In essence, the appellant's position is that Article 116 EPC guarantees the right of the parties to be heard at in-person oral proceedings. Holding oral proceedings in the form of a videoconference without the parties' consent is incompatible with the EPC and violates the legitimate expectation of a party to proceedings before the EPO that its well-established right to have oral proceedings in person will not be curtailed.

All in all, it seems fair to say that the appellant's representatives have presented a compelling case in support of their position that "the question referred to by the Technical Board of Appeal 3.5.02 shall be answered in the negative":

That is, the conduct of oral proceedings in the form of a videoconference is not 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.

Now it's over to the Enlarged Board of Appeal to decide the matter.

"With proceedings due to resume at 9:00 on 2 July, it’s popcorn time, folks…"It remains to be seen whether or not the EPO's highest judicial organ is capable of making a belated effort to assert its independence by acting in a manner that would go some way towards restoring public confidence in the integrity of the procedure.

The alternative is that - as many observers fear - the Enlarged Board will turn out to be a tame and submissive "lapdog" of Team Campinos.

With proceedings due to resume at 9:00 on 2 July, it's popcorn time, folks... ⬆

Popcorn time at the EPO as proceedings in G 1/21 due to resume.