Oral proceedings at different instances
The EPO started having more oral proceedings by videoconference last spring. Since April 2020 all oral proceedings in examination have been held, and will continue to be held, by videoconference unless the applicant provides serious reasons why the proceedings should be held at the EPO premises. In the past these oral proceedings could be held by videoconference if the applicant so requested and the EPO agreed.
Oral proceedings in opposition have been held by videoconference in certain cases since May 2020 in the context of a pilot project. At the moment and until the end of the year, all parties must, however, agree to videoconference. At the beginning of 2021 and for the time being until 15.9.2021, all oral proceedings in opposition will be held by videoconference. As with examination, the parties can request the oral proceedings to be held at the EPO premises if they can present serious reasons. The EPO has the right to decide whether they accept the request or not, and this decision is not separately appealable.
Oral proceedings in front of the Boards of Appeal are also possible by videoconference, but for the time being consent of all parties is required. The Boards of Appeal, however, have suggested that agreement of the parties may not necessarily be required in the future.
The reason for the change of practice at the EPO is presumably mainly the fact that only a limited number of parties have agreed to oral proceedings held by videoconference. The continuing situation with the virus leads to significant delays in proceedings as well as to a backlog of oral proceedings.
How in practice and what if I do not want a videoconference?
The technical means used by the EPO are Skype for Business and Zoom, the latter being used when there are several parties and/or interpretation is required. The parties, even different persons of a party, may participate in the oral proceedings from different locations.
A particular advantage of the new practices compared to earlier is that in case technical problems prevent proper conduct of the proceedings, and the problems cannot be solved during the proceedings, the oral proceedings are rescheduled.
As mentioned above, the parties can refer to serious reasons and request oral proceedings to be held at the EPO. The EPO has already communicated that distrust of the security of videoconferencing or missing technical means, for example, are not considered to be serious reasons. In practice, acceptable serious reasons could most probably be, for example, a need to hear a witness or to show a concrete model of the invention.
Are oral proceedings by videoconference recommendable?
One advantage of videoconference is naturally the savings in travelling time and costs. The parties do also not need to stress about delayed or cancelled flights.
In some cases, the day preceding the oral proceedings is the day when the client and the attorney can, while preparing, concentrate solely on the proceedings at hand. This preparation together may thus be missed out, especially at these times of “let’s avoid physical meetings”, and when the client and the attorney are not from the same or close locations.
Having myself participated in one opposition oral proceedings by videoconference, I would say that in addition to not having the usual stress of travelling, I especially appreciated being able to take my time settling down in front of the computer, organising my papers and other equipment. I think that a good camera and a big screen ensure that one does not miss even the slightest hint of non-verbal communication from the opposition division.
Starting from the beginning of 2021 one does not usually have a choice in practice, at least until September. It remains to be seen whether oral proceedings mainly by videoconference will continue once the situation with the virus calms down.