The inexorable rise of EPO oral proceedings by video conference

http://ipkitten.blogspot.com/2021/01/the-inexorable-rise-of-epo-oral.html

The COVID-19 pandemic will change many aspects of life as we know it. One particularly prominent change has been the accelerated adoption of video-conferencing (VC) as a risk free way of ensuring business continuity. The European Patent Office (EPO) has not been left behind, with the ready adoption of oral proceedings by VC as the new norm. However, the European patent community is divided over whether this is a welcome and inevitable modernisation of EPO proceedings or a dangerous erosion of the right to be heard that should not outlast the pandemic. 

Before COVID-19, all EPO Opposition Division and Boards of Appeal oral proceedings required in person attendance at the EPO by all the parties. The global pandemic, and the accompanying plethora of national lockdowns and travel bans across Europe, initially caused all in-person oral proceedings to be postponed. To keep the business of the EPO  going, the EPO was forced to transition to oral proceedings by video-conference (VC). It now seems, with the introduction of a new rule of procedure of the Boards of Appeal, that oral proceedings by VC might well become the default from now on. 

Examination and Opposition Division oral proceedings

In April 2020, the EPO President launched a “pilot project” for Opposition Division oral proceedings by VC (OJ EPO 2020, 41). The pilot was initially to run until April 2021, but has now been extended to 15 September 2021 (Decision of the President, 10 Nov 2020). The pilot permits oral proceedings to be held at the EPO only “if there are serious reasons” against the use of VC. The decision of the Opposition Division on whether these serious reasons apply is final and cannot be separately appealed (Decision of the President, 10 Nov 2020, Article 2). Concurrently, all Examining Division oral proceedings are now to be held by VC, in view of another Decision of the EPO President in April 2020 (OJ EPO 2020, A39). 

Board of Appeal oral proceedings

In the early days of the pandemic, the EPO Boards of Appeal initially cancelled all imminent oral proceedings. In May 2020, the Board of Appeals resumed limited oral proceedings in Haar. In order to deal with the growing back-log of cases, the Boards also instigated, for the first time, Board of Appeal oral proceedings by VC. All parties in a case had to agree to a VC hearing. The first oral proceedings to be held by OP in the history of the Boards of Appeal was the hearing for appeal case T 1378/16.

In November 2020, the EPO launched a user consultation on an amendment to the Rules of Procedure of the Boards of Appeal (RPBA). The proposed amendment was the insertion of a new article, Article 15a RPBA, to state that the Boards of Appeal may hold oral proceedings by VC in any case that the Board “considers it appropriate to do so, either upon request by a party or on its own motion“. Article 15a also states that the Board chair may allow any party or representative to attend by VC. As originally proposed, Article 15a also stated that the Board chair could further, in “exceptional circumstances”, require a party to attend by VC (although this provision did not make it into the final amendment). Article 15a RPBA was subsequently adopted by the Boards of Appeal Committee, and came into effect on 1 January 2021 (BA communication of 15 Dec 2020). 

Any parties needing to be further dissuaded from attending Board of Appeal oral proceedings in person, might note that the canteens in Haar and the Isar building have also now been closed until further notice [Merpel: Are there any other places to eat lunch in Haar?].

Article 15a RPBA divides opinion

The Chartered Institute of Patent Attorneys” (CIPA) submissions to the user consultation strongly supported the introduction of Article 15a RPBA. CIPA cited the obvious advantages of convenience, accessibility and efficiency as a reason to make VC oral proceedings the norm. CIPA argued that the EPO should, in fact, make VC the default for Board of Appeal proceedings, with attendance in person only permitted for “serious reasons” (as is currently the case for Examining and Opposition Division oral proceedings). CIPA’s reasoning was that without a clear default to VC, proceedings would be at risk of procedural manoeuvring by parties. CIPA further strongly opposed a hybrid form of proceedings, i.e. proceedings having a mixture of in person and remote attendance, arguing that such proceedings would be inherently unbalanced.  The Intellectual Property Owner’s Association had very similar views to CIPA. 

Other organisations, including the European Patent Litigators Association (EPLIT) and the Munich based patent firm Bardehle Pagenberg, promoted their strong opposition to Article 15a RPBA. These submissions stress the importance of face-to-face verbal communication in complex cases and the risk of technical issues (although anyone who has tried relying on EPO WiFi and printers during a hearing will know hat technical issues are not limited to VC oral proceedings…). It seems the EPO listened to these concerns to some degree, given that Article 15a as adopted does not include the provision that the Board chair can in “exceptional circumstances” require a party to attend by VC.

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