Notice from the European Patent Office dated 10 November 2020 concerning oral proceedings before examining and opposition divisions, and consultations, by videoconference

1. Since 1 April 2020, oral proceedings before examining divisions are held by videoconference.[ 1 ] Likewise, consultations in examination (previously referred to as interviews) may be held by videoconference.

2. Furthermore, oral proceedings before opposition divisions are being held by videoconference in the context of a pilot project launched on 4 May 2020.^[ 2 ]

3. The European Patent Office (EPO) has been upgrading and expanding the technology and tools used for oral proceedings by videoconference. Since September 2020, it has been in a position to provide interpretation in oral proceedings, if so requested, and to conduct oral proceedings by videoconference that involve a greater number of participants.

4. On the basis of the experience gathered in the first phase of the pilot project launched on 4 May 2020, the President of the European Patent Office has decided to extend the pilot project for oral proceedings by videoconference before opposition divisions until 15 September 2021.^[ 3 ] Furthermore, with a view to guaranteeing effective access to justice and to avoiding a continuous increase in the number of unresolved oppositions, for oral proceedings that are scheduled to take place on or after 4 January 2021, the agreement of the parties to hold oral proceedings in opposition proceedings by videoconference will no longer be required under this pilot.

5. This notice provides updated and consolidated information about the new conditions and practice as regards oral proceedings before examining and opposition divisions, and consultations, by videoconference. It supersedes the previous notices concerning oral proceedings and interviews to be held by videoconference dated 1 April 2020 (OJ EPO 2020, A40) and concerning the pilot project for oral proceedings by videoconference before opposition divisions dated 14 April 2020 (OJ EPO 2020, A42), as revised by the notice dated 13 May 2020 (OJ EPO 2020, A72).

Oral proceedings by videoconference before examining and opposition divisions

6. As a rule, where oral proceedings have been requested or are considered expedient by the examining division or – under the aforementioned pilot project – by the opposition division, the parties will be summoned to oral proceedings held by videoconference.

7. Oral proceedings before examining and opposition divisions may only be held on the premises of the European Patent Office if there are serious reasons against holding them by videoconference.^[ 4 ] Examples of serious reasons are, in particular, 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 where the haptic features are essential, to the extent that this is possible in accordance with the applicable provisions). Sweeping objections against the reliability of videoconferencing technology or the non-availability of videoconferencing equipment will, as a rule, not qualify as serious reasons in this regard.

Requests for oral proceedings on the premises of the EPO

8. A request that oral proceedings be held by way of exception on the premises of the EPO should be filed as early as possible, preferably together with the request for oral proceedings. The granting of a request for oral proceedings to be held on the premises of the EPO will be at the discretion of the division in question.

9. If the request for oral proceedings on the premises of the EPO cannot be allowed and is received after the summons to oral proceedings, the division will inform the parties that the oral proceedings will take place by videoconference as set out in the summons and include a brief reasoning as to why the request cannot be granted. If the request is received before the summons has been issued, the reasons for the refusal will be given in the annex to the summons. In either case, a refusal of this type is not separately appealable.

10. If a request for oral proceedings on the premises of the EPO is allowable and is received after the summons to oral proceedings by videoconference has been issued, the parties will be informed that oral proceedings will be held on the premises of the EPO as requested; where possible, the date of the oral proceedings will remain unchanged.

Status

11. Oral proceedings held by videoconference are equivalent to oral proceedings held on the premises of the EPO.^[ 5 ] Consequently, a request for further oral proceedings before the same department (whether by videoconference or in any other form) may be refused where the parties and the subject of the proceedings are the same (Article 116(1) EPC).

Technical information

12. Videoconferences will be conducted using IP technology. Detailed information on the technology and tools used by the EPO and on the minimum technical requirements is available on the EPO website and will be communicated to the parties. Such information may be updated from time to time. Users are, therefore, advised to check the website regularly.

13. All participants to oral proceedings or consultations must ensure that their videoconferencing equipment meets the technical requirements specified. They are encouraged to perform a test call well before the oral proceedings take place.

Date and time of oral proceedings and consultations by videoconference

14. Oral proceedings and consultations held by videoconference will take place on a working day within EPO working hours.

Confirmation email

15. In addition to the summons, participants will receive an email confirming the date, time and the videoconference contact details to be used to establish the connection (in the form of a link or by other suitable means) and containing any further appropriate information, including on the organisation of the videoconference.

Remote connection of members of a division

16. The members of the division may connect to oral proceedings held by videoconference remotely from different locations.

17. Participants will be informed of the remote participation of members of the division at the beginning of the oral proceedings, after the connection has been established and before they are formally opened.

Participation of parties and their representatives from different locations

18. A party and their representative may be allowed to connect to the videoconference from different locations, on condition that this does not have an impact on the stability on the videoconference connection. An intention to that effect should be indicated as early as possible.

Recording

19. No image or sound recording, or retransmission, may be made of any part of the oral proceedings or consultations held by videoconference other than by the EPO.

Submission and transmission of documents

20. During oral proceedings and consultations held by videoconference, documents must be filed by email.^[ 6 ] The division in question will provide the parties or representatives with the email address to be used.

21. Any emails and attached documents filed by a party during oral proceedings in opposition proceedings will be forwarded by the EPO to the other parties, unless the party in question has already sent them directly to the email address indicated by the other parties. Therefore, each party must communicate to the chairperson and, where possible, to the other parties at the beginning of the oral proceedings the email address it wishes to use for receiving copies of such documents. Parties and representatives must ensure that they can immediately take note of any document sent to the email address indicated by them.

Technical problems

22. Where, notwithstanding all efforts of the participants, technical problems prevent the oral proceedings by videoconference from being conducted or continued, a new summons to oral proceedings will be issued. As a rule, such new oral proceedings will be held by videoconference, unless there are serious reasons for not doing so.

Equipment and costs

23. The EPO videoconference studios are for the use of EPO staff only.

24. The EPO does not require the payment of a specific fee for holding oral proceedings or consultations by videoconference. Participants will bear only the costs for their connection to the internet and any technical facilities or software at their end.

Attendance of members of the public at opposition oral proceedings

25. Oral proceedings in opposition proceedings are public, in so far as the opposition division does not decide otherwise (Article 116(4) EPC). Members of the public may, upon giving prior notice, be provided with a link to connect to the videoconference. Alternatively, they can attend public oral proceedings held by videoconference in a dedicated room on the premises of the EPO. The way in which members of the public may attend oral proceedings held by videoconference will be announced on the EPO website.

Further information

26. Further information on the technology, procedure and etiquette for conducting oral proceedings and consultations by videoconference is available on the EPO website.