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Making predictions within the global uncertainty of the past few years has been a risky business. From unpredictable US elections and Brexit votes/negotiations to the impacts of the pandemic, it’s not been the easiest time for anyone to stick out their neck and make predictions.
The decision on pending referral G1/21 before the EPO’s Enlarged Board of Appeal may, however, be a more straightforward outcome to predict.
On 24th March 2021, the EPO published a Notice concerning the conduct of oral proceedings in examination and opposition in view of referral G1/21. The notice confirmed that during pendency of the referral, and following a considerations of the impact for legal certainty and access to justice, the EPO has decided that oral proceedings before examining and opposition divisions will continue to be held by videoconference (VICO) as under current practice, i.e. without requiring the agreement of the parties.
G1/21 seeks to clarify whether oral proceedings may be conducted by VICO without all parties’ consent. The referral concerns appeal proceedings, but also extends to oral proceedings by VICO before examining and opposition divisions. The referred question is “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?”
As Danish physicist, Neils Bohr, is reported to have said, “It is very difficult to make an accurate prediction, especially about the future”. At AA Thornton, however, we have not been deterred by the risk of proverbial ‘egg on face’ when offering predictions, and many of us expect a swift decision on G1/21 with the answer to the referred question being a “yes” (reiterating Article 15a of the Rules of Procedure of the Boards of Appeal) as the EPO attempts to maintain access to justice as well as efficient functioning while we all try to find a route out from the effects of the pandemic.
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