The EPO has recently issued a decision confirming that oral proceedings before examining divisions, the Legal Division, the Receiving Section and now, permanently, opposition divisions will be held by videoconference (VICO) unless there are serious reasons for holding these in person.
This decision issues as we approach the expiry of the pilot for holding opposition division oral proceedings by VICO, which is at the end of this year. The decision enters into force on 1 January 2023 and applies to all oral proceedings before the departments of the EPO listed above that are scheduled to take place on or after that date.
At least for now, this rule does not apply to oral proceedings before the Boards of Appeal or the Enlarged Board of Appeal.
The corresponding Notice provides further updated information about the conditions and practice as regards oral proceedings by VICO. The Notice also indicates a preference to holding consultations in examination by VICO.
Some key points are set out below.
A request that oral proceedings be held in person should be filed as early as possible, preferably together with the request for oral proceedings.
A refusal of a request for oral proceedings in person will not be a separately appealable decision.
The Notice provides examples of what can be considered “serious reasons” for holding such oral proceedings in person. These include:
- reasons relating to a participant in the oral proceedings as an individual (e.g. a proven visual impairment that prevents a representative from following oral proceedings on screen); and
- reasons related to the nature and subject-matter of the proceedings (e.g. where they involve the demonstration or inspection of an object).
However, sweeping objections based on the reliability of VICO technology or the non-availability of VICO equipment will, as a rule, not qualify as “serious reasons”.
Positively, the Notice confirms that where technical problems prevent the oral proceedings by VICO from being conducted or continued, a new summons will be issued. However, in line with the general rule the new oral proceedings will also be held by VICO, unless there are serious reasons for not doing so.
By contrast, if a party, witness or expert who is summoned to give evidence before the EPO fails to connect to the oral proceedings (for reasons other than technical problems), then they will be deemed not to have appeared.
The Notice indicates that members of an examining division or opposition division may connect to the oral proceedings by VICO from different locations. Similarly, the parties, their representatives and any persons accompanying the parties or representatives, as well as witnesses and experts, may connect to the VICO from different locations.
Submission and transmission of documents
During oral proceedings and consultations held by VICO, documents must be filed by email. If the division consents, then a party may present its screen for illustrative purposes. However, an item displayed in this way will not be considered to constitute a document submitted by that party.
Holding oral proceedings by VICO has not only helped to reduce the backlog of cases caused by the COVID-19 pandemic, but there have also been significant positive impacts on time, costs and sustainability. This is particularly the case for many of our attorneys who used to regularly travel to Munich or The Hague from the UK in order to attend oral proceedings in person.
While there may have been a few teething problems with the initial transfer to conducting most oral proceedings by VICO, this drive towards VICO is generally viewed positively for at least the reasons set out above. The resulting reduction in carbon emissions is also in line with Boult’s commitment to responsible business practices.
In general, therefore, it appears that this decision will be welcomed in the profession. The further guidance also appears reasonable and does not introduce anything unexpected.
If you have any questions, then please do not hesitate to ask me or your usual contact at Boult.