COVID and ViCo: EPO referral to the Enlarged Board of Appeal


In the last year, the COVID-19 pandemic has resulted in a large proportion of the legal sector transitioning to a ‘work from home’ arrangement, with meetings taking place remotely. Non-essential travel has largely been curtailed worldwide and this has raised the issue of in-person European Patent Office hearings.

At the beginning of the pandemic, the EPO chose to postpone all opposition and appeal hearings, with the hope that they would resume quickly. As it became evident that international travel would remain limited for a long period, the EPO began holding virtual hearings in order to start clearing some of the backlog. At first, hearings only took place via Video Conferencing (ViCo) with the consent of all parties. This led to limited uptake and it was announced in December that from 1 January 2021, appeal hearings could be held by ViCo even without the agreement of the parties concerned. This has been incorporated into new Article 15a RPBA. Similar decisions had previously been taken regarding hearings before the Examining and Opposition Divisions.

Whether mandatory virtual appeal hearings are legal has now been challenged. At a recent Board of Appeal hearing, the Board decided to refer questions to the Enlarged Board of Appeal regarding the legality of holding ViCo appeal hearings without the consent of all parties. The exact wording of the referral has not yet been published, but parties unwilling to attend hearings by ViCo may be able to utilise the pending referral to delay their hearings.

Here at CMS, we are well-equipped to attend hearings in all formats, no matter the outcome of this referral, and we have already represented clients in multiple ViCo opposition and appeal hearings.