As we rounded-up in our earlier patent round-up report, 2025 was a busy year for the European Patent Office Enlarged Board of Appeal (EBA), with cases G 1/23, G 1/24 and G 2/24 dropping in quick succession. This leaves G 1/25 ("Hydroponics") as the sole remaining pending referral before the EBA (also discussed in our report). 

The G 1/25 referral is intended to tackle the issue of whether a patent description needs to be conformed to amended claims. This is proving to be a divisive issue amongst patent practitioners, as the number, and nature, of the comments submitted to the recent IPKat blog on the case testify. The window for filing amicus curiae briefs has now closed, with 39 briefs having been filed (available to read here). It will take some time for the EBA to wade through these submissions, so this issue is likely to (g)rumble on for some time yet...

...as is the fallout from G 1/21, regarding the use of video conferencing for Oral Proceedings at the EPO, with various commentators still asking what happened to the promised "Gold Standard" of in-person proceedings? This commentator, for one, rather misses the trips to Munich: shooting the breeze with the other side's attorney during recesses; wrestling with the photocopier in the EPO attorney room; only remembering that the EPO canteen doesn't accept credit cards when reaching the till; and the celebratory/commiseratory Maß and currywurst at the airport. A recent decision before the EPO Technical Board of Appeal suggests others do too, in particular with regard to the evaluation of evidence and witnesses:

T 1283/22 is an appeal by the patent proprietor, Siemens Aktiengesellschaft, against Eaton Industries GmbH as opponent, concerning European patent EP 2 905 794 relating to a "Static contact support for circuit breaker and circuit breaker thereof". The Opposition Division had revoked the patent for lack of novelty over an alleged public prior use by Eaton, and the proprietor appealed.

The Opposition Division twice postponed in-person Oral Proceedings during the COVID-19 period, and ultimately held them, with a witness, by videoconference on 20 October 2021, despite the proprietor's objections and adjournment requests. On appeal, Siemens requested a referral to the EBA as to whether G 1/21's "Gold Standard" applies to first-instance departments (i.e. the EPO Examining and Opposition Divisions) and to the taking of evidence (witnesses) by videoconference.

The Board was having none of it. It held that even assuming G 1/21 were binding at first instance, the Opposition Division's refusal to hold in-person proceedings was justified given the continuing pandemic-related circumstances and broader EPO-wide considerations, and that amended Rule 117 EPC expressly permits hearing witnesses by videoconference; its applicability is not confined to pandemics. The Board found nothing in G 1/21 directly or even indirectly addressing the hearing of witnesses: witness hearing by VICO is compatible with EPO practice and the principle of free evaluation of evidence. The request for referral to the EBA was refused; the Board considered existing case law sufficient. 

Some of the more interesting arguments put forward by the Appellant included:

• Having the Opposition division panel in different locations, screen-sharing to present evidence, and the selective use of zoom/markup to present evidence, amounted to "substantial procedural violations".
• The length of the hearing (about 12 hours) was also a substantial procedural violation: German employment laws only permit a maximum 10-hour working day, so the (German employee) witness would need to head off home prior to the conclusion of the hearing (in addition to which the lights in the EPO building were turned off during the hearing). 

However, the Board found that having the Opposition Division panel in different locations, screen-sharing to present evidence, and the selective use of zoom/markup to present evidence, had no causal impact on the outcome, and that whilst lengthy hearings are not ideal, adjournment would have significantly delayed already protracted proceedings, and no party suffered a particular disadvantage. 

So, witness hearings by VICO are seemingly compatible with the EPC under Rule 117 EPC, EPO employees can continue to WFH and not have to make the effort to come into the office for Oral Proceedings, and procedural/formal objections should focus on concrete prejudice or evidential shortcomings rather than general assertions about VICO's limitations.