Videoconferencing: the future of oral proceedings at the EPO?

The European Patent Office has announced that videoconferencing will become the norm for oral proceedings before examination and opposition divisions until at least 15 September 2021. But is this a taste of what the future holds for oral proceedings at the EPO?

Oral proceedings before the examination and opposition divisions of the European Patent Office (EPO) have traditionally been held in-person with the parties involved needing to travel to the EPO’s premises to take part. Whilst videoconferencing had occasionally been permitted during examination proceedings, it has not been widely adopted – only 14% of examination oral proceedings in 2019 were held by videoconference. The historical low uptake of videoconferencing may partly be due to the risk of technical difficulties jeopardising the outcome, partly due to perceived benefits of discussing a case in person, and partly because attorneys are reluctant to change from what they are used to.

However, the significant disruption caused by the Coronavirus pandemic has caused a paradigm shift in the way oral proceedings are currently being conducted by the EPO, which is likely to have long-lasting effects.

Oral proceedings before the examination division

By default, all oral proceedings before the examination division will be held by videoconference (OJ EPO 2020, A39).

Where there are serious reasons preventing the use of videoconferencing for oral proceedings before the examination division, the proceedings will be postponed until after 15 September 2021. Some examples of “serious reasons” might include where a party has a proven visual impairment that prevents following oral proceedings on screen, or where they involve the demonstration or inspection of an object where the haptic features are essential.

If a party is summoned to oral proceedings by videoconference, they may (by way of exception) make a request for the oral proceedings to be held on the premises of the EPO. If the request is allowable, the proceedings will take place at the EPO’s premises as requested and, where possible, the date of the oral proceedings will remain unchanged.

The EPO has not currently set an end date for these provisions, and it is reasonable to assume that these provisions will be in place for the foreseeable future.

Oral proceedings before the opposition division

By default, all oral proceedings before the opposition division will be held by videoconference until 15 September 2021 (OJ EPO 2020, A121 and OJ EPO 2020, A122).

Analogous to oral proceedings before the examination division, where there are serious reasons preventing the use of videoconferencing for oral proceedings before the opposition division, the proceedings will be postponed until after 15 September 2021.

The current provisions concerning opposition oral proceedings are part of a pilot project scheduled to end on 15 September 2021. It should be anticipated that any opposition oral proceedings scheduled for after this date will, by default, revert to being held on the premises of the EPO. However, the success of the pilot project will be reviewed prior to this date and, if the project is deemed successful, the EPO might extend the use of videoconferencing in opposition oral proceedings beyond the end of the current pilot project (at least to some extent). It will be interesting to see the EPO’s eventual approach as it develops over the next few months.

Oral proceedings before the Boards of Appeal

Oral proceedings before the Boards of Appeal are currently still taking place at the EPO’s premises. However, oral proceedings before the Boards of Appeal can now also be conducted by videoconference.

Currently, the parties concerned must agree for oral proceedings before the Boards of Appeal to be conducted by videoconference. However, from 1 January 2021, the boards may conduct oral proceedings by videoconference even without the agreement of the parties concerned (EPO communication). An amendment to the Rules of Procedure of the Boards of Appeal (RPBA) (coming into effect on 1 April 2021) further confirms this change.

The amendment to the RPBA allows the Board to decide to hold oral proceedings by videoconference either upon request by a part or of its own motion. Furthermore, even if oral proceedings are scheduled to be held on the premises of the EPO, a party may, upon request, be allowed to attend by videoconference. This appears to allow some parties to attend proceedings in person while others join the proceedings by videoconference. This represents a significant change to the way oral proceedings before the Boards of Appeal are held.

Looking forward

The current pilot project for opposition oral proceedings is due to end on 15 September 2021. After this date, it should be anticipated that opposition oral proceedings will revert to being held in person as the default position. On the other hand, there is no scheduled end date for the default use of videoconferencing in examination oral proceedings, and videoconferencing for examination oral proceedings is expected to remain the norm for the foreseeable future.

The EPO has adapted quickly to using videoconferencing to hold oral proceedings (whether in examination, opposition, or before the Boards of Appeal). Whilst it remains to be seen how well-received the widespread use of videoconferencing will be (particularly in inter partes proceedings), the lack of travel expenses should provide a welcome cost reduction for the end client. There is, however, some debate amongst European patent attorneys regarding the approach adopted by the EPO, and representations will be made which could affect the ongoing situation.

Nevertheless, due to the widespread uptake of videoconferencing in oral proceedings (whether in examination, opposition, or before the Boards of Appeal), it seems likely that the ongoing use of videoconferencing for oral proceedings (in one form or another) is here to stay for the long-term.

Dr Christopher Hotchen, European Patent Attorney