At the European Patent Office (EPO), the term "oral proceedings" is used for occasions on which parties present their arguments verbally. Oral proceedings typically occur at the end of a process, after written submissions. There are three occasions when oral proceedings are used by the EPO, namely during examination of patent applications (before examining divisions), during oppositions to a patent by another party (before opposition divisions), and during appeals (before a board of appeal).

With effect from 2 April 2020 all new oral proceedings before examining divisions will be held by videoconference. With effect from 4 May 2020 oral proceedings before opposition divisions can be held by videoconference with the agreement of the opposition division and with the agreement of all parties. The use of videoconferencing before boards of appeal is possible in theory, but is currently not done in practice. We discuss videoconferencing in each of these three areas separately below.

Oral proceedings before examining divisions

Historically, oral proceedings required travel to one of the EPO's offices Munich, The Hague or Berlin. Although in recent years it has been permitted to use videoconference for oral proceedings before examining divisions, in practice this was not always possible, sometimes because there were not sufficient videoconferencing facilities available at the EPO on the day of the oral proceedings.

One of the changes everyone has noticed during the recent Covid-19 pandemic is the greater use of videoconferencing. The EPO is no exception to this trend, and on 1 April 2020 the President of the EPO issued a decision stating that all new oral proceedings before examining divisions will be held by videoconference by default.

This is a welcome development, as it will allow oral proceedings before examining divisions to be conducted more easily, and at lower cost.

It is still possible to request that such oral proceedings be held in person "if there are serious reasons against holding the oral proceedings by videoconference such as, in particular, the need to take evidence directly". However, if the request is refused, no appeal is possible. At present, all oral proceedings in person have been postponed because of the Covid-19 pandemic. Thus, the option to request oral proceedings in person is something that, in practice, can apply only after the lifting of this restriction.

The decision specifically states that, "upon request, the applicant and its representative may connect to the oral proceedings by videoconference from different locations". We understand that the EPO is also likely to be considerate in setting the time of the oral proceedings to suit different time zone. It should therefore be possible to conduct oral proceedings in which the EPO examiners, the European patent attorney and the applicant / overseas attorney are all in different countries.

Oral proceedings before opposition divisions

This decision above already represents a big change. However, the President of the EPO, the relatively newly appointed Antonio Campinos, did not to stop there. Following hot on the heels of the first decision, on 14 April 2020 he announced a further decision introducing a pilot project for the use of videoconferencing before opposition divisions. This arguably represents a bigger change than the first decision, as videoconferencing has never previously been available before opposition divisions.

The pilot will run for about a year, from 4 May 2020 until 30 April 2021, and allows oral proceedings before opposition divisions to be held by videoconference at the discretion of the opposition division and with the agreement of all parties.

During the present Covid-19 pandemic, the requirement for all parties to agree to the videoconference may present a stumbling block in some cases. This is because opposition division oral proceedings currently cannot take place in person at the EPO due to the pandemic. Therefore, one party will effectively be able to force a postponement of the oral proceedings simply by not agreeing to conduct the oral proceedings by video. Nevertheless, some opposition oral proceedings will undoubtedly take place by video, where both parties can agree that it is in their interest to do so.

Oral proceedings before the opposition divisions are public. That is to say, any member of the public has the right to attend oral proceedings held by an opposition division. Some attorneys had wondered whether this would present a hurdle to such oral proceedings being held by video. However, it seems that the EPO is not daunted by this, and Article 5 of the Decision states:

"Members of the public can follow oral proceedings held by videoconference either remotely upon giving prior notice or on the premises of the European Patent Office in the location where the opposition division is set up, as determined by the European Patent Office."

So it seems anyone will be able to follow any such oral proceedings by video from their own location, should they wish to do so.

The Decision also states that, if the opposition division consents, a party may present its screen during the oral proceedings.

Oral proceedings before boards of appeal

Although there is no specific prohibition on oral proceedings before an appeal board taking place by video, in practice this appears not to be done. In a fairly recent case, T 2068/14 (which we reported here) the appeal board stated that the onus was on the appellant to persuade the board that conventional oral proceedings were not appropriate to properly present the appellant's case and that the board should exercise its discretion to, exceptionally, explore the possibility of holding oral proceedings by video conference. In this case, the board rejected the request.

Like opposition oral proceedings mentioned above, appeal oral proceedings are also public. Given that the EPO has solved the problem of making oral proceeding available to the public in relation to opposition oral proceedings held by videoconference, there seems no reason in principle why the same could not be done for oral proceedings before the boards of appeal. We shall have to wait to see if there is any change of practice in relation to appeals, and this may well depend on the length of the current pandemic.

Originally published 05 May 2020

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