EPO President puts ViCo in opposition and examination on a permanent footing

http://ipkitten.blogspot.com/2022/11/epo-president-puts-vico-in-opposition.html

The EPO has announced the EPO President’s decision to make ViCo the default format for all opposition and examining oral proceedings from 1 January 2023. The President’s Decision precedes the end of the ViCo pilot program at the end of this year and puts the use of ViCo at first instance on a permanent footing. 

On Zoom

According to the President’s Decision, oral proceedings before the Examining or Opposition Divisions should, from January, be held by ViCo by default. Oral proceedings may still be held in-person if “there are serious reasons against holding the oral proceedings by videoconference”. The decision does not elaborate as to what these serious reasons may constitute. 

The latest EPO announcement on the use of ViCo in opposition oral proceedings comes days after the release of the report of the latest user survey on the ViCo oral proceedings pilot program (IPKat). In classic EPO fashion, the user survey report was unremittingly positive about users’ experiences of ViCo. Indeed, the survey did reveal user attitudes to ViCo as being generally positive. Nonetheless, the EPO report glossed over the small but significant proportion of users who rated their experience of ViCo as “poor” or “very poor”. Now that ViCo for opposition and examining division oral proceedings are here to stay, we can but hope that behind the scenes the EPO is seeking to address the issues with ViCo that some users continue to experience. 

The decision of the EPO to make ViCo the default in opposition also comes against the backdrop of the EBA decision in G1/21 earlier this year (IPKat). G1/21 considered the legal basis for mandatory ViCo in appeal hearings. Critically however, the EBA did not consider it appropriate in G1/21 to comment on the use of ViCo in opposition and examining oral proceedings. G1/21 was instead restricted to considering the legal justification for mandatory ViCo in appeal oral proceedings. However, the points made by the EBA in G1/21 on the general suitability (or lack of) of ViCo in oral proceedings may be applied just as well to opposition oral proceedings as appeal hearings. 

In G1/21, the EBA found that, whilst the use of ViCo in oral proceedings does not contravene a user’s right to be heard, it is nonetheless sub-optimal. As such, according to the EBA, the use of mandatory ViCo in appeal hearings was only justified in view of the state of general emergency occasioned by the COVID-19 pandemic. The EBA went so far as to say that in-person proceedings remained the “gold standard” and should be the default absent a state of general emergency. 

The Boards of Appeal have not yet had to fully put the EBA’s reasoning against ViCo into practice. So far, Boards of Appeal have avoided the issue by continuing to find that a state of general emergency from the COVID-19 pandemic is still in place, and that ViCo is therefore justified under G1/21 (IPKat). 

With the EPO President pulling in one direction, and the EBA in another, the EPO once again appears to be tying itself in legal knots. 

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