Pandemic measures cease but ViCo Boards of Appeal oral proceedings continue

http://ipkitten.blogspot.com/2023/01/pandemic-measures-cease-but-vico-boards.html

The EPO has announced the cessation of pandemic measures. The announcement (here) states that going forward it will now be at the discretion of individual Boards of Appeal to summon parties to and conduct oral proceedings either in person or by VICO. 

The EPO has also launched a user consultation on the implementation of Board of Appeal oral proceedings by videoconference (ViCo). Anyone can submit responses to the consultation here. The consultation form is brief, mostly consisting of multiple choice questions, with limited opportunity for free text comments or detailed feedback, giving the survey a perfunctory feel. The deadline for responding to the consultation is 31 March 2023. 

Legal background: ViCo oral proceedings

In 2021, the EPO introduced a new Rule of Procedure of the Boards of Appeal (RPBA), Article 15a, permitting a Board of Appeal to hold oral proceedings by ViCo whenever “the Board considers it appropriate to do so”. The new rule sparked a referral to the EBA on the legality of the new provision, G 1/21 (IPKat). In the referral, the EBA only directly considered the legality of mandatory use of ViCo during “a general emergency impairing the parties’ possibilities to attend in-person oral proceedings” (e.g. the COVID-19 pandemic) (IPKat). 

The EBA found that the mandatory use of ViCo during appeal hearings was permitted during a state of general emergency, as ViCo did not fall below the threshold required by the right to be heard (Article 113 EPC). However, the EBA’s decision also included some pointed remarks on the limitations of ViCo, and went so far to say that in-person proceedings were the gold-standard and should be the default in the absence of a general state of emergency impairing the parties’ ability to attend (IPKat). 

ViCo Kat
Since G 1/21, Boards of Appeal addressing the question of whether mandatory ViCo oral proceedings is justified, have thus far have continued to find that there is a state of general emergency impairing parties’ possibilities to attend in-person oral proceedings (IPKat). However, anecdotal reports are that, whilst ViCo has been the default, Boards of Appeal have been generally willing to accept requests from parties for in-person proceedings. Parties report that a simple reference to the reasoning in G 1/21 that in-person proceedings are the gold standard is usually enough to persuade a Board of Appeal that the proceedings should be held in-person. The latest announcement states that now pandemic measures have ceased, parties may submit reasons to the Board of Appeal why they have a preference for a particular type of oral proceedings.
It is also worth noting that Opposition and Examining Division proceedings are another matter when it comes to ViCo (which was not directly considered in G 1/21, which only related to Boards of Appeal oral proceedings). Towards the end of last year, a decision from the President made ViCo the default format for all opposition and examining division oral proceedings from the beginning of 2023 (IPKat). In an obvious attempt to avoid a flood of appeals on non-substantive grounds, the President’s decision also stated that a decision of the Examining Division or Opposition Division to hold proceedings by ViCo is not separately appealable. 

EPO consultation

The latest consultation on ViCo is minimal, to say the least. The questions relate to the efficiency of ViCo oral proceedings, and the clarity and availability of information made available by the EPO about ViCo oral proceedings. There is also a question on the implementation of ViCo oral proceedings, which simply asks; “How would you rate the implementation of oral proceedings by VICO?”, but no opportunity has been provided to input free text comments on this topic. Even if there were an opportunity to provide comments, the EPO does not have a great track record of delving into the nuances of user responses (IPKat). 

It seems to PatKat that the EPO might not have put very much effort into this consultation (there is currently even a very visible typo on the “thank you for your submission” page). It is also notable that anyone can respond to the consultation as many times as they like, raising questions as to the reliability of any data generated. Given the brief nature of the questions and the survey format, can we expect any meaningful data to come out of this survey? 

Going forward it will be interesting to see how amenable Boards of Appeal will be to allowing parties the choice of oral proceedings format, and where the balance will fall when there is a disagreement between the parties. 

Further reading

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