The Enlarged Board of Appeal's consideration of referral G1/21 has been postponed

The hearing in relation to G1/21 concerning whether Oral proceedings may be held via videoconference without the consent of the parties was due to take place today. The composition of the Enlarged Board had been changed prior to the hearing today in response to initial challenge against some members for partiality. In the oral proceedings this morning the Enlarged Board advised that a further complaint from the appellant with respect to the partiality of the Board had been received. This complaint was discussed in non-public proceedings for approx. 3 hours after which the EBA announced that the oral proceedings could continue in the presence of the public with the same composition.

The appellant had, however, raised a further objection that their right to be heard would be violated if the proceedings continued without postponement because the appellant had only received formal notification of the President’s comments filed in relation to the matter 2 days before the scheduled oral proceedings which was insufficient time to review and provide comments, which they were entitled to do under Article 9(2) of the Rules of the EBA. They had also only received a copy of more than 40 amicus briefs that had been filed 2 days before the oral proceedings. The EBA noted that the comments from the President and the amicus briefs had been made publically available on the EPO website on 28th April 2021 and suggested that the appellant had surely looked at them. However, the appellant argued that this was not sufficient. They were a party to the proceedings and as such should be formally notified and given the opportunity to comment within a reasonable deadline.

After an adjournment, the EBA asked the appellant how long they would need to review the comments from the President. The appellant responded that they needed at least 1 month. The appellant did, however, agree that they would be happy to have a shortened period between filing their comments and the resumption of oral proceedings. After a further adjournment the appellant was given the deadline of 25th June 2021 to file their comments and oral proceedings would be re-scheduled for shortly thereafter, most likely in the first week of July. We will provide further details following the outcome of the hearing.