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Proceedings at EPO via Videoconference

The EPO has been providing applicants and their representatives with the opportunity to be heard via ViCo since 1998. Last year, 2 345 oral proceedings were conducted virtually, roughly 13% of all examination oral proceedings scheduled in 2019. Holding oral proceedings by ViCo has proven to be an equally effective, popular and sustainable alternative to face-to-face proceedings at EPO premises.

As of 1 April 2020, by virtue of a Decision issued by the President of the EPO https://www.epo.org/law-practice/legal-texts/official-journal/information-epo/archive/20200401.html, oral proceedings before Examining Divisions will take place by videoconferencing. This practically came into force on 2 April 2020 and affects all summons to oral proceedings notified on or after that date unless there are “serious reasons” (such as the need to take evidence directly), for the oral proceedings to take place physically on any of the actual sites of the EPO.  However, unless the “serious reasons” are without basis, the EPO will refuse the request and the oral proceedings will take place by videoconferencing.  So, the default position is that oral proceedings before the Examination Divisions will take place by videoconferencing.  Although this current CVD-19 pandemic is likely to have been the trigger for these provisions, they are neither time-limited nor conditional for Examining Divisions and will therefore remain in place even after current worldwide travel restrictions are lifted.

Having recently spoken with an EPO Examiner, I can report that prior to this Decision, only approximately 10% of Examining Division oral proceedings took place by videoconferencing and this has now moved to 100%. Furthermore, the current pandemic has moved the “working from home” policy for Examiners from around 40% to a 95%. This particular Examiner wholeheartedly welcomed these changes and the only downside that they could foresee is that, in  “in person” oral proceedings process circumstances, the three Examiners of the Examining Division would have physically met the day prior to oral proceeding to discuss tactics and express collectively their positions and issues.  However, this Examiner does not see this as an insurmountable issue and is looking forwards to the changes in practice.

Following on from the new practice with the Examining Divisions, the President of the EPO issued a further decision on 14 April 2020 concerning a pilot project to extend videoconferencing to proceedings before Opposition Divisions. The EPO has decided to run a pilot project from 4 May 2020 until 30 April 2021, to assess the suitability of videoconferencing for Opposition Divisions oral proceedings. Additional information is available at  https://www.epo.org/law-practice/legal-texts/official-journal/information-epo/archive/20200420.html

This represents a further significant departure from current EPO practice as although the possibility of oral proceedings before Examining Divisions has been available via videoconference for some time, it has never before been extended to the Opposition Divisions. This change in practice is in response to the present COVID-19 pandemic and that Opposition Divisions oral proceedings are not currently being held at the premises of the EPO, and indeed may not resume for some time.

In contrast to the position with Examining Divisions oral proceedings, where it will be unusual to attend oral proceedings in person, from now on the oral proceedings before the Opposition Divisions within the pilot project, will only take place via videoconferencing with the agreement of the Opposition Divisions and inter partes participants. The Decision states that “ The Opposition Divisions will not agree to hold oral proceedings by videoconference if the proceedings require the taking of evidence by hearing witnesses, parties or experts or by inspection, or if there are other serious reasons for not doing so”. Furthermore, providing that the numbers of participants does not have an impact on the stability on the videoconference connection the number of participants will not be limited.

As we say, this is a pilot project extended to the Opposition Divisions and TLIP Ltd will be monitoring to see if there will be widespread engagement and satisfaction with this change to practice and if it will be extended beyond April 2021.

Take care and keep well everybody with very best regards from all at TLIP Ltd.