1. Article 116 EPC does not stipulate that the person present in the Oral Proceedings must be "physically present"[1].
2. The EPC does not (literally) “exclude”[2] Oral Proceedings by video conference.[3]
3. A Video conference contains the essence of Oral Proceedings, namely that the board and the parties/representatives can communicate with each other simultaneously[4]. Note: This argument speaks also inherently against the legality of “forced” video conferences under Art. 116 EPC because it implies that video conferences and Oral Proceedings are not the same (lemon essence and a lemon are not the same).
Article 116 EPC requires (repeatedly, in each paragraph of Article 116 EPC) Oral Proceedings "before" (German: vor/ French: devant) the respective "department" of the EPO (e.g. Article 116(1) EPC: "before the same department"). The word "before" in a legal context can have - in general - two meanings. For abstract subject matter such as a "case" this means that the respective Court or Judge (or "department") is dealing with this abstract subject matter. If it is used in the context of Oral Proceedings, it means that someone is present at the place of the Court or Judge (or "department") while the case is dealt with.
Therefore, the Cambridge dictionary defines "before" in this context as follows[5]:
"If a legal case comes before a Law Court or a Judge, it is dealt with by them and when someone comes before a Court or Judge, they are present while the case is dealt with".
To be present at a place means to be "physically there" to be "physically present". Virtual presence, on the other hand, is just a form of non-presence, i.e. absence[6].
In essence, Article 116 EPC itself strongly supports a meaning that “actual” presence is required.
This is even further supported by Articles 18 and 19 of the EPC requiring that: “Oral Proceedings shall be before the [Examining/Opposition] Division itself.” (Emphasis added; German: „Die mündliche Verhandlung findet vor der [Prüfungsabteilung/Einspruchsabteilung] selbst statt.“; French: „La procédure orale se déroule devant la division [d'examen /d'opposition] elle-même.“).
This seems to also be supported by Rule 115 of the Implementing Regulations of the EPC, according to which the parties shall be summoned to Oral Proceedings under Article 116 EPC (in German: “zur mündlichen Verhandlung nach Artikel 116 werden die Beteiligten … geladen". In French: “La citation des parties à une procédure orale…“).
However, "Summons" or "Ladung"/citation" means that the Court ("department") invites the parties to come to their place. Again, this appears to require actual presence (or at least it implies an invitation to be physically present).
Notably, Art. 116 EPC guarantees the right to Oral Proceedings even in the case that the department responsible for the application/patent agrees 100 % with the remaining requests of the party. This alone shows that the term “Oral Proceedings” is not (only) related to pure technical aspects (i.e. aiming at an efficient closure of the proceedings) but has other and/or additional purposes (further discussed below).
No other provision in the EPC or its implementing regulation excludes the right of the parties to appear before the competent department. No provision in the EPC or its implementing regulations allows the EPO to shut their door if the parties travel to the premises where the department is located and the Oral Proceedings take place.
Conclusively, the wording of the EPC and its implementing regulations clearly support that only presence in its truest sense is meant (one may call it "physical presence" or "actual presence", or simply "presence").
T 1012/03 refers to the repeated use of “before” in paragraphs (1)-(4) of Article 116 EPC, namely "before the same department", "before the Receiving Section", “before the Receiving Section, the Examining Division and the Legal Division" and "the department before which the proceedings are taking place" (see T 1012/03, Reasons, 37). The Board in this case concluded that in the context of Oral Proceedings the word "before" implies the location ("where"), the proceedings had to be carried out, namely at least at the place where the relevant department is located. The Board of Appeal in T 1012/03 further explains that such implementation was never questioned because "it was self-evident" that the parties or their Representatives must travel to the place of the respective department.
E.g. in T 689/05 (reasons, 5.1, 5.18) it was stated that the right to Oral Proceedings pursuant to Article 116 EPC is a codified part of the procedural right to be heard under Article 113(1). This right to be heard at Oral Proceedings also includes the right of a party to present its arguments at the correct place according to the EPC provisions (see also T 1012/03, Reasons, point 25). The underlying understanding of this case law is the precise opposite of a place being defined as: anywhere in the world except the location of the competent department.
According to T 2068/14: Oral Proceedings under Article 116 EPC are an exception to the general rule that submissions can be received from “anywhere in the world at any time” because they involve the parties or their representatives “appearing before the board”. In practice, this has traditionally been understood as the physical presence of a party or its representative before the Board (reasons, T 2068/14, 1.2.3).
Similarly, in T 677/08 (Reasons, 4.3) the Board explained that according to Article 116, the party or their Representative have a right to Oral Proceedings which means “he has a right to appear in person before the competent department in order to discuss the case” (emphasis added).
Furthermore, in a large number of cases in 2020, i.e. in established non-disputed practice, the Boards of Appeal proposed Oral Proceedings subject to agreement by all parties.
It can thus be readily deduced that Art 116 EPC was never seen as providing a basis for “virtual Oral Proceedings” without the parties’ agreement, whilst depriving the parties’ right to actual Oral Proceedings at the correct place.
In T 1378/16, the Board took apparently another view, arguing that a video conference “nevertheless contains the essence of Oral Proceedings, namely that the board and the parties/representatives can communicate with each other simultaneously”. First, however, this remains a simple allegation without any further reasoning (e.g. not even discussing G 2/19, Reasons, C.IV.1. and C.IV.2.). Secondly, a telephone conference and/or an exchange of text messages would also contain such “essence”. In consequence, breaking down the term “Oral Proceedings” to any form of “simultaneous communication” appears to unreasonably stretch the interpretation of “Oral proceedings”. Thirdly, in effect, this argument speaks inherently against the legality of “forced” video conferences under Art. 116 EPC because it implies that video conferences and Oral Proceedings are not the same (again: lemon essence is not the same as a lemon).
Very recently, the Enlarged Board of Appeal at least indicated that any unusual place or time for Oral Proceedings, could be seen as infringement of the right to be heard (cf. G 2/19, Reasons C.IV.1.) because this might appear to show a certain lack of willingness on the part of the competent department to deal with a case.
Additionally, the Enlarged Board of Appeal explains in G 2/19 (see Reasons, C.IV.2.) that the "principle of the protection of legitimate expectation" (in the German text of G 2/19: "Grundsatz des Vertrauensschutzes"), must be considered. The Enlarged Board of Appeal explains that a user of EPO services must be able to rely on the fact that the departments of the EPO do not carry out their actions in any "third place". This clearly forbids members of the competent department of the EPO handling the case from being absent from the actual location of the Oral Proceedings. Moreover, this seems to indicate that the Enlarged Board of Appeal considers the right to a personal appearance before the competent department as implicit in Article 116 EPC.
According to the travaux preparatoires, IV/6514/61-D, page 83, originally an optional solution for Oral Proceedings was intended[7]. This was reasoned by the large distances in the region of the EPC member states and the correspondingly large costs involved. Similarly, according to M/21, page 236, it was explained that at least two months' notice of the summons shall be given because the parties may be far away from the seat of the Patent Office and owing to the considerable amount of translation involved, the parties concerned require reasonable time for instructing their agents and for sufficient preparation for an oral hearing.[8]
This means that Oral Proceedings before the Boards of Appeal were understood to be proceedings in person. It is interesting to recall that even at that time video conferencing was technically possible and also in use (although, of course, it was not as widespread as today). It is thus clear that, at the time of preparing the EPC, it would have been a feasible solution to establish central locations (e.g. one in every member state) to discuss the case "orally" by video conference. Anyway, "tele-orality" (and the supporters of a "broader" interpretation of Article 116 EPC seem to extend the meaning of this regulation even to tele-conferences) was generally known at the time.
Furthermore, when introducing "Oral Proceedings by video conference" it was assumed that these were not in line with the requirements of Article 116 EPC because it was necessary to waive the right of Article 116 EPC when requesting “Oral Proceedings by video conference", as follows[9]: "the Applicant renounces in advance and irrevocably his right to Oral Proceedings being held in the traditional form at the EPO premises on the same subject matter after the requested video conference."
These days, such an explicit waiver is no longer requested by the EPO. There is no case law decision, however, where a party tried to obtain an actual Oral Proceedings with the argument that an agreed or even requested first "virtual Oral Proceedings" was not an exercise of the right of Article 116 EPC. Even if, one could well argue that an explicit request for a “video conference Oral Proceedings” implies a corresponding waiver to the right of actual Oral Proceedings.
In conclusion, the history of establishing the EPC and the option of video conferences shows that it was never considered that the EPO may hold “video conference oral proceedings” without the agreement of the parties. In all cases, Oral Proceedings have been understood as meetings “in person” before the competent body.
Article 116 EPC is embedded in the series of Article 113-117 (within part VII - common provision, Chapter I – “common provisions governing procedure") which contains, for example the "right to be heard" or regulations which relate generally to a certain "transparency" and "achievability" of the EPO (e.g. Article 115 EPO) or the "willingness" of the EPO to deal with a case (e.g. Article 114 EPO).
Not surprisingly, the Enlarged Board of Appeal sees something more than mere "orality" in Article 116 EPC, namely in particular aspects concerning the abovementioned "achievability" and "willingness" of the EPO (see G 2/19, Reasons, C.IV.1 and 2). Again, applying a systematic interpretation, fundamental principles such as the "protection of legitimate expectations" (German: "Grundsatz des Vertrauensschutzes") and a "willingness" on the part of the EPO to deal with a case are touched upon.
A systematic interpretation also supports that the attempt of a teleological reduction (to the "essence") of T 1378/16 must fail. In T 1378/16, the Board argued that a video conference “nevertheless contains the essence of Oral Proceedings, namely that the board and the parties/representatives can communicate with each other simultaneously”. In other words it sees Art. 116 as a mere technical requirement. However, art 116 EPC is not embedded in a series of regulations with technical character only (one would expect that in such series at least the “written procedure” should be mentioned or the “written form” be defined) but embedded in a series of regulations with another focus (as outlined in the previous paragraph).
In essence, the systematic interpretation also clearly points to a right to actual Oral Proceedings (as opposed to oral proceedings in absentia, e.g. by video conference or a telephone call).
Is it a reasonable interpretation to understand that the only purpose of Article 116 EPC is to allow the parties or their Representatives to use their voice (be it either remotely or directly)? Should orality be the only purpose, it would also be in line with Article 116 EPC to force the parties to send their "oral arguments" before the date of Oral Proceedings in writing and to forbid everything else except for reading of these written arguments aloud.
Hence, one must realise that there is more implied and required. Referring in particular to the Enlarged Board of Appeal in G 2/19, a purpose is to give the parties the "feeling" of being part of a fair and just trial. A purpose is to give the parties the opportunity to see those deciding on their case in person. In essence, the Decisions of the persons within the departments of the EPO should be "trustworthy". These aspects relate to the main purpose of Article 116 EPC and not the mere "orality" as such.
In any event, Art. 116 EPC cannot have mainly a technical purpose (such as a quick and efficient closure of the proceedings) because it guarantees the right to Oral Proceedings – upon a party’s request - even in a case that the department dealing with the case agrees 100 % with the remaining requests of the party. Hence, in this regard Art. 116 EPC is neutral. It may even have the consequence that a decision of the department of the EPO in line with the substantial request of the party is delayed because the party wishes to use its procedural right under Art. 116 EPC.[10]
From this it follows that also the attempt of a “teleological reduction” of T 1378/16 fails. In T 1378/16, the Board argued that a video conference “nevertheless contains the essence of Oral Proceedings, namely that the board and the parties/representatives can communicate with each other simultaneously”. However, the department dealing with the case must still summon for Oral Proceedings even if there is absolutely no necessity for exchanging anything in relation to the substance of the case in any form (simultaneously or not) – namely if the department already expressed in writing that they agree with all substantial requests of the party. Note: The request for Oral Proceedings need not be reasoned but it could be reasoned e.g. by: “Thank you for agreeing with my written requests. However, I as user of the EP services want to have a personal meeting with the department dealing with my invention which is detrimental for the survival of my family’s business and livelihood”.
Conclusively, the essence of Oral Proceedings is not a mere technical one, and may not be reduced to the mere possibility of simultaneous inter-party communication[11]. Also the teleological interpretation clearly points to a right to actual Oral Proceedings (as opposed to Oral Proceedings in absentia, e.g. by video conference or a telephone call).
The practice in Switzerland is particularly instructive, insofar that in one case a court (Zürcher Handelsgericht) has actually performed a Video conference proceedings – against the will of one party – because it believed this would be in line with the Swiss code of Civil procedure (ZPO), requiring “oral” proceedings. In concrete terms, it was stated that the legislator had "no objections of a fundamental nature" (original German: “keine Einwände grundsätzlicher Art”) to videoconferencing. The ZPO had been deliberately designed according to the principle of "courage to leave loopholes" (orignal German: „Mut zur Lücke“)[12].
This “courage to leave loopholes”-theory was not confirmed by the higher court (Schweizer Bundesgericht)[13]. To the contrary the higher court stated that the lower court had no legal basis to order a video conference against the will of the parties. Therefore, it could also not rely on the extraordinary situation resulting from the coronavirus pandemic.
In addition, the Swiss “Bundesrat” (but notably no office, nor any court with the exception of the failed attempt reported above) was active and provided a legal basis for holding video conferences, as follows[14] (emphasis added):
Art. 2 - Einsatz von Videokonferenzen
In Abweichung von Artikel 54 der Zivilprozessordnung (ZPO) können Verhandlungen mittels Videokonferenz durchgeführt werden, wenn eine der folgenden Voraussetzungen erfüllt ist:
a. Die Parteien sind damit einverstanden.
b. Eine Partei, ihre Vertreterin oder ihr Vertreter beantragt dies und macht glaubhaft, dass sie oder er zu einer Kategorie der durch das Coronavirus besonders gefährdeten Personen gehört, und es sprechen keine wichtigen Gründe gegen eine Durchführung mittels Videokonferenz.
c. Ein Gerichtsmitglied gehört zu einer zu einer Kategorie der durch das Coronavirus besonders gefährdeten Personen, und es sprechen keine wichtigen Gründe gegen eine Durchführung mittels Videokonferenz.
d. Es besteht eine besondere Dringlichkeit.
English translation:
In departure of Article 54 of the Code of Civil Procedure (CCP), hearings may be conducted by videoconference if one of the following conditions is met:
a. The parties agree to it.
b. A party, his or her representative requests it and makes a credible case that he or she belongs to a category of persons particularly vulnerable to the coronavirus, and there are no important reasons against conducting it by videoconference.
c. A member of the court belongs to a category of persons particularly endangered by the coronavirus and there are no important reasons against conducting it by videoconference.
d. There is a special urgency.
In essence, the Swiss perspective is very clear in that Video conferences cannot be understood as a potential form of Oral Proceedings according to the national code of civil procedure (ZPO). Moreover, no case is known where any office or court successfully deprived the parties of their right to actual Oral Proceedings with the argument that virtual oral proceedings are Oral Proceedings as well.
The austrian legislator within its power was active, as follows (emphasis added)[15].
§ 3. (1) Das Gericht kann bis zum Ablauf des 31. Dezember 2020
1. mit Einverständnis der Parteien mündliche Verhandlungen und Anhörungen ohne persönliche Anwesenheit der Parteien oder ihrer Vertreter unter Verwendung geeigneter technischer Kommunikationsmittel zur Wort- und Bildübertragung durchführen sowie auf diese Weise auch ohne Vorliegen der Voraussetzungen des § 277 ZPO Beweise in der mündlichen Verhandlung oder außerhalb dieser aufnehmen und sonst der Verhandlung beizuziehende Personen teilnehmen lassen; das Einverständnis gilt als erteilt, soweit sich die Parteien nicht innerhalb einer vom Gericht festgesetzten angemessenen Frist dagegen aussprechen;
2. ohne Einverständnis der Parteien Anhörungen und mündliche Verhandlungen in Unterbringungs-, Heimaufenthalts- und Erwachsenenschutzsachen sowie in Verfahren nach dem Tuberkulosegesetz und dem Epidemiegesetz 1950, wenn sie außerhalb der von der Justizverwaltung zur Verfügung gestellten Räumlichkeiten durchzuführen wären, unter Verwendung geeigneter technischer Kommunikationsmittel zur Wort- und Bildübertragung durchführen, auf diese Weise Beweise in der mündlichen Verhandlung oder außerhalb dieser aufnehmen und sonst der Verhandlung beizuziehende Personen teilnehmen lassen.
English translation:
§ 3. (1) Until the expiry of 31 December 2020, the court may
1. with the consent of the parties, conduct oral proceedings and hearings without the personal presence of the parties or their representatives by using suitable technical means of communication for the transmission of words and images and, in this way, also without the prerequisites of Section 277 of the Code of Civil Procedure being met, take evidence at the oral proceedings or outside them and allow persons who are otherwise required to attend the proceedings to participate; the consent shall be deemed to have been granted unless the parties object within a reasonable period of time set by the court;
2. without the consent of the parties, conduct hearings and oral proceedings in matters of accommodation, home residence and adult protection, as well as in proceedings under the Tuberculosis Act and the Epidemics Act 1950, if they would have to be held outside the premises provided by the administration of justice, using suitable technical means of communication for the transmission of words and images, and in this way record evidence in or outside the oral proceedings and have persons who are otherwise to be present at the hearing participate.
Again, video conferences are not understood to be based on the word “oral” in the Austrian code of civil procedure (ZPO). This can be derived from the specific time limit highlighted above making it clear that the wording above is not a clarification, but is rather an additional provision limited in time. Moreover, no case is known where any office or court successfully deprived the parties of their right to actual Oral Proceedings with the argument that virtual Oral Proceedings are Oral Proceedings as well.
In Germany, "Oral Proceedings by video conference" are not Oral Proceedings. This can clearly be derived from Sections 128 and 128a of the code of civil procedure. This is also expressed literally within the reasoning of Section 128a German Court of Civil Procedure (ZPO) where the German legislator explains (Deutscher Bundestag Drucksache 14/6036, p.116):
"Insoweit wird der Grundsatz des § 128 Absatz 1 ZPO, nachdem die Parteien über den Rechtstreit vor dem erkennenden Gericht mündlich verhandeln, im Interesse der Prozess Ökonomie durchbrochen." (emphasis added)
In English:
"In this respect, the principle of section 128, 1 ZPO, according to which the parties hear the dispute orally before the recognising Court, is broken in the interests of procedural economy." (emphasis added)
In essence, at least in Germany a video conference oral proceedings "breaks" ("durchbricht") the fundamental principle of Oral Proceedings.
Moreover, no case is known where any office or court deprived the parties of their right to actual Oral Proceedings with the argument that virtual oral proceedings are Oral Proceedings as well.
In the Netherlands, the legislator within its power was active, as follows (emphasis added)[16].
Paragraaf 2 Tijdelijke voorziening inzake mondelinge behandeling in burgerlijke en bestuursrechtelijke zaken
Artikel 2 (mondelinge behandeling in burgerlijke en bestuursrechtelijke gerechtelijke procedures)
1.Indien in verband met de uitbraak van COVID-19 in burgerlijke en bestuursrechtelijke gerechtelijke procedures het houden van een fysieke zitting niet mogelijk is, kan de mondelinge behandeling plaatsvinden door middel van een tweezijdig elektronisch communicatiemiddel.
...
Artikel 35 (inwerkingtreding en verval)
…
3. Deze wet vervalt op 1 september 2020. Het tijdstip waarop deze wet vervalt kan bij koninklijk besluit worden bepaald op een ander tijdstip, met dien verstande dat dit tijdstip ten hoogste twee maanden na het tijdstip ligt waarop de wet zou vervallen.
English translation:
Section 2 Temporary measure in respect of oral conduct of civil and administrative cases
Article 2 (oral conduct of civil and administrative court proceedings)
1. If, in connection with the outbreak of COVID-19, it is not possible to hold a physical hearing in civil and administrative legal proceedings, the oral hearing can take place by means of a two-way electronic means of communication.
…
Article 35 (entry into force and lapse)
…
3. This law will lapse on 1 September 2020. The point in time at which this law will lapse can be set at a different point in time by royal decree, provided that this point in time is in each case at most two months after the point in time at which the law would lapse.
The law is currently set to lapse on 1 April 2021.
Again, video conferences cannot be based on the existing code of civil procedure. This can be derived from the definition of a “Temporary measure” and the requirement that Video conferencing is only possible “in connection with the outbreak of COVID-19” which makes it clear that the wording above is not a clarification but an additional provision limited in scope.
The latest royal decree extending the date on which the temporary measure will lapse includes a motivation explicitly addressing the need to keep open the possibility of holding oral hearings by video conference instead of in person. The legislator therefore seems to see a need to differentiate between the two.
Moreover, no case is known where any office or court deprived the parties of their right to actual Oral Proceedings with the argument that virtual oral proceedings are Oral Proceedings as well.
Regarding the changes in light of COVID-19, CPR Practice Direction 51Y, made under rule 51.2 of the Civil Procedure Rules (CPR) of England and Wales, and which ceases to have effect on the date on which the Coronavirus Act 2020 ceases to have effect, stipulates that[17]:
“During the period in which this Direction is in force, where the court directs that proceedings are to be conducted wholly as video or audio proceedings and it is not practicable for the hearing to be broadcast in a court building, the court may direct that the hearing must take place in private where it is necessary to do so to secure the proper administration of justice.” In essence, even in England and Wales - as an example of a Common Law system where the courts have traditionally much freedom to develop the law - the competent Authority provided specific Regulations to allow video conferences for a limited time period (until the “Coronavirus Act 2020 ceases to have effect”).
In essence, it is clear that even in England and Wales - as an example of a Common Law system where the courts have traditionally a great deal of freedom to develop the law - the competent Authority provided specific Regulations to allow video conferences only for a limited time period (until the “Coronavirus Act 2020 ceases to have effect”).
According to the Swedish Code of Judicial Procedure (1942: 740)[18] the main hearing is oral (Chapter 43, Section 5). As far as can be seen this has never be understood to cover video conferences. Accordingly, explicit Regulations have been introduced in the Code of Judicial Procedure with the “More modern court proceedings” reform[19]. Now, certain participation by video conference is possible (e.g. Chapter 5, Section 10, Swedish Code of Judicial Procedure).
10 § Den som ska delta i ett sammanträde inför rätten ska infinna sig i rättssalen eller där sammanträdet annars hålls.
Om det finns skäl för det, får rätten besluta att den som ska delta i ett sammanträde ska delta genom ljudöverföring eller ljud- och bildöverföring. Rättens ordförande får besluta i frågan om den uppkommer under ett sammanträde.
…
Den som deltar i ett sammanträde genom ljudöverföring eller ljud- och bildöverföring ska anses ha inställt sig inför rätten. Lag (2019:298).
English translation:
Section 10
A person who is to attend a meeting before the court shall appear in the courtroom or where the meeting is otherwise held.
If there are reasons for it, the court may decide that the person who is to participate in a meeting shall participate by audio transmission or audio and video transmission. The President of the Court may decide on the question whether it arises during a meeting.
…
Anyone who participates in a meeting by audio transmission or audio and video transmission shall be deemed to have appeared before the court. Lag (2019: 298) .
Specific Regulations for the use of video conferences have been introduced by the legislator. A party participating by video conference is not considered to appear before the Court but to be absent (cf. the legal fiction in the last sentence of Chapter 5, Section 10 and Chapter 36, Section 18, partially translated into English, as follows: “When a meeting is held in the absence of a party in accordance with the first paragraph, the party shall, if possible, be allowed to follow the meeting by audio transmission or audio and video transmission”).
In Swedish Law, video conferences have been explicitly allowed by the legislator (other than in the EPC). On the other hand, no case is known where any office or court deprived the parties of their right to actual Oral Proceedings with the argument that virtual Oral Proceedings are to be understood as the same as Oral Proceedings.
Recently amended Civil Procedural Law No. 6100, article 149, allows hearings to be conducted through voice and image transmission. Specifically, the court may allow each of the parties to attend the hearing and carry out procedural actions by transmitting audio and video at the same time.
6100 HUKUK MUHAKEMELERI KANUNU
MADDE 149
(1) Mahkeme, taraflardan birinin talebi üzerine talep eden tarafın veya vekilinin, aynı anda ses ve görüntü nakledilmesi yoluyla bulundukları yerden duruşmaya katılmalarına ve usul işlemleri yapabilmelerine karar verebilir.
…
(3) Mahkeme, tarafların üzerinde serbestçe tasarruf edemeyecekleri davave işlerde ilgililerin, aynı anda ses ve görüntü nakledilmesi yoluyla bulundukları yerden dinlenilmesine resen karar verebilir.
…
English translation (emphasis added):
6100 LAW OF CIVIL PROCEDURES (TURKEY)
ARTICLE 149
(1) The court, upon the request of one of the parties, may decide that the requesting party or its attorney can attend the hearing from where they are located and carry out procedural proceedings by simultaneously transmitting audio and video.
…
(3) The court may decide ex officio, in cases and affairs that the parties cannot freely dispose of, to listen to those concerned from where they are, by transmitting audio and video at the same time.
…
In general, in Turkey the parties and their representatives cannot be forced to video conferences against their will (with the explicit exception of ARTICLE 149 (3))
There is no indication that Oral Proceedings have ever been considered to “automatically” cover video conferences. Moreover, no case is known where any office or court deprived the parties of their right to actual Oral Proceedings with the argument that virtual oral proceedings are Oral Proceedings as well.
The CJEU informed the public as follows[20]:
If it is not possible for a party’s representative to travel to Luxembourg to attend a hearing before the General Court owing to the health crisis and measures taken by the national authorities, he or she may lodge, by way of a specific emergency measure, a reasoned request to participate in the hearing via video conference link.
It is thus clear that the CJEU also does not seem to depart from the concept of Oral Proceedings as proceedings before the court (i.e. at the place of the court). It is only foreseen – with limited scope relating to the health crisis - to allow the representatives “to participate in the hearing via video conference link” [21].
The UPCA understands “video conferencing” as a form of “electronic procedure” (cf. Art. 44 UPCA) and obviously not as example for “Oral Proceedings” (defined in Art 52 UPC). Consequently, the UPCA RoP (draft) are clear in that a “video conference” is an alternative to an “oral hearing” (Rule 264) and is an alternative to a “conference […] held in Court” (Rule 105, No. 1 and 2).
This shows that the UPCA agreement and its Rules of Procedure also do not understand video conferences as a potential form of Oral Proceedings/oral hearings.
The regulation (EC) No 861/2007 creates a simplified and fast-track written procedure for handling cases involving small cross-border claims[22]. The regulation explicitly allows that the court or tribunal may hod an oral hearing through video conference or other communication technology if the technical means are available. In essence, the EU legislator explicitly accepts oral hearing by video conference for small claims (German: “Bagatelle”). There are no similar provisions for any case which is not a small claims case. Therefore, it appears that the EU legislator does not see video conference as being equivalent to actual Oral Proceedings or even naturally derivable from an “oral hearing” or “Oral Proceedings”.
For more than 20 years, the users of the EPO services have been informed about the possibility of “Oral Proceedings by video conference” and they have been repeatedly reminded that their agreement or corresponding request is necessary. Since early 2020, the Boards of Appeal (in more than 50 cases) have suggested “Oral Proceedings by video conference” if the parties agree. No Case is known where the Boards of Appeal informed the party/parties that such agreement would not be necessary. Hence, standard practice is the exact opposite to the allegation in the explanatory remarks to draft Art 15a RPBA, stating[23] (footnotes added):
“As outlined above, proposed new Article 15a RPBA clarifies the practice[24] of the Boards of Appeal since May 2020 of conducting oral proceedings by videoconference. Therefore, the Boards of Appeal may adapt their practice[25] before the date of entry into force.”
Apart from the fact that a clarification of a practice by changing the practice does not make sense: the common practice can and should be considered as customary law. The applicant filing his/her application two years ago could trust that he/she has the right to actual Oral Proceedings and that “virtual oral proceedings” as replacement for actual Oral Proceedings will only be performed if he/she agrees.
It is well-known that the EQE is an open book exam raising only questions for which one “crystal clear” answer exists (based on the EPC or other legal sources). Hence, it seems to be interesting that the correct answer to the question in paper C of the EQE 2011 whether Oral Proceedings in opposition cases may be requested was: “No, there is no legal provision allowing video-conferences before an opposition division.”[26] Given the high number of candidates in 2011 and the traditionally close results in paper C, it may well be that EPA candidates failed the EQE if arguing to the contrary (or: in line with parts of the EPO these days).
I believe the above facts and arguments speak for an interpretation of Article 116 EPC that always allows a party to be actually present at the place of the department dealing with their case and that an interpretation which excludes this right of said party is not legally justified.
[1] Pleonasm? What is with “before”, “vor”, “devant” in Art 116 EPC?
[2] Again, what is with “before”, “vor”, “devant” in Art 116 EPC
[3] e.g. : http://documents.epo.org/projects/babylon/eponet.nsf/0/ABB07FC3026814D7C125863F004CF531/$File/boac-16-20_en.pdf, page 2/8
[4] cf. T 1378/16, Reasons, 1.2; notably, this seems to allow also exchange of text messages
[5] https://dictionary.cambridge.org/de/worterbuch/englisch/come-before-sth-sb
[6] cf. Chapter 36, Section 18 of the Swedish Code of Judicial Procedure, partially translated as follows: “When a meeting is held in the absence of a party in accordance with the first paragraph, the party shall, if possible, be allowed to follow the meeting by audio transmission or audio and video transmission”.
[7] http://webserv.epo.org/projects/babylon/tpepc73.nsf/0/55EC6146E659D105C12574270047BCF4/$File/Art116eTPEPC1973.pdf , see page 133 of the pdf file
[8] https://www.epo.org/law-practice/legal-texts/html/epc/2016/e/r115.html , see page 16 of the pdf file
[9] according to the official journal of the EPO, 12/1997, page 572 et seq.
[10] Only as a side note: Experience shows that if the party requests oral proceedings, even as auxiliary request, it will in the average case receive more office actions and (intentionally or not) prolong the proceedings. So a “practice-based” counter-argument must fail.
[11] Already Aristotle argued that it is wrong to attempt to reduce all things to mere necessity, because doing so neglects the aim, order, and final cause, which brings about these necessary conditions. Aristotle, Generation of Animals 5.8, 789a8–b15
[12] This is by the way the only argument provided so far by the EPO as support to deny the right to actual oral proceedings.
[13] https://www.nzz.ch/schweiz/zivilprozesse-keine-verhandlungen-per-video-ohne-einverstaendnis-der-parteien-ld.1570171
[14] Verordnung über Massnahmen in der Justiz und im Verfahrensrecht im Zusammenhang mit dem Coronavirus (Covid-19-Verordnung Justiz und Verfahrensrecht) vom 16. April 2020 (Stand am 13. Oktober 2020), gestützt auf Artikel 7 des Covid-19-Gesetzes vom 25. September 2020; https://www.admin.ch/opc/de/classified-compilation/20201084/202010130000/272.81.pdf ;
[15] Bundesgesetz betreffend Begleitmaßnahmen zu COVID-19 in der Justiz (1. COVID-19-Justiz-Begleitgesetz – 1. COVID-19-JuBG)
StF: BGBl. I Nr. 16/2020 (NR: GP XXVII IA 397/A AB 112 S. 19. BR: AB 10288 S. 904.); www.ris.bka.gv.at/GeltendeFassung.wxe
[16] Wet van 22 april 2020, houdende tijdelijke voorzieningen op het terrein van het Ministerie van Justitie en Veiligheid in verband met de uitbraak van COVID-19 (Tijdelijke wet COVID-19 Justitie en Veiligheid); Wet van 22 april 2020, houdende tijdelijke voorzieningen op het terrein van het Ministerie van Justitie en Veiligheid in verband met de uitbraak van COVID-19 (Tijdelijke wet COVID-19 Justitie en Veiligheid)
[17] https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part51/practice-direction-51y-video-or-audio-hearings-during-coronavirus-pandemic
[18] https://www.riksdagen.se/sv/dokument-lagar/dokument/svensk-forfattningssamling/rattegangsbalk-1942740_sfs-1942-740
[19] FACT SHEET Ministry of Justice Ju 08.05e December 2008; https://www.legislationline.org/download/id/3400/file/Sweden_Fact_Sheet_on_More%20Modern%20Court%20Proceedings_2008_en.pdf
[20] https://curia.europa.eu/jcms/jcms/p1_3012067/en/; 18. Dec. 2020
[21] rather similar to section 128a German code of civil procedure
[22] https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=LEGISSUM:l16028&from=DE ; https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32007R0861&from=DE
[23] http://documents.epo.org/projects/babylon/eponet.nsf/0/ABB07FC3026814D7C125863F004CF531/$File/boac-16-20_en.pdf, online on Dec 18, 2020
[24] Note, practice so far: VidCo only with agreement
[25] Note: VidCo also without agreement!; Question: What is a practice adapting to itself?
[26] http://documents.epo.org/projects/babylon/eponot.nsf/0/306DDB77C0F84C59C12578E60047E46D/$File/2011_paper_C_exrep_en.pdf , page 5
