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At the start of the Covid-19 pandemic, the European Patent Office (EPO) announced that Oral Proceedings for Opposition Proceedings as well as Examination Proceedings would be carried out by Video Conference. For Opposition Proceedings in particular, there were going to be some challenges because hearings before the Opposition Board are inter partes proceedings involving both the Patentee and one or more Opponents, and in some cases also require the presence of translators. Opposition hearings are also meant to be open to attendance by members of the public. The EPO and its users have quickly become accustomed to the new digital practices. The result has been that large numbers of hearings have been held by Video Conference, and by and large these are thought to have been held very successfully. On the back of this, at the end of November 2020, the EPO announced an extension to the Video Conference program making Video Conferencing mandatory for the parties for a pilot period from the beginning of January to mid-September 2021. This move of the EPO towards Video Conferencing suggests that the Video Conference format will at least be used a great deal more for Oral Proceedings than previously, especially in first instance Examination and Opposition proceedings, and that perhaps the mandatory Video Conference regime that is now being piloted could become the default or permanent solution.
Screenshot from EPO Oral Proceedings Video Conference. Photo: EPO.
Understandably, the idea of this becoming permanent has ruffled some feathers amongst users. This is a significant change and discussions are gaining pace. There are two notable sides to the discussion, centred around Articles 113 and 116 of the European Patent Convention (EPC), which provide parties with a Right to be Heard through Oral Proceedings before a case is finally decided by the EPO. On the one hand, it is argued that Video Conference technology is widely available to users across the member states of the EPC, and therefore that parties get better access to justice where they otherwise would not be able to attend or it would be cost-prohibitive to attend a hearing at the EPO in person. This is compelling as EPO hearings take place before the Divisions at the premises of the EPO in Munich or the Hague. Yet the member states of the EPC span across Europe – from Finland to Portugal and from Iceland to Greece. Applicants and their professional representatives in many states therefore do not have easy travel connections to EPO office cities. By Video Conferencing, the provisions of the EPC would arguably therefore be more appropriately implemented by providing greater numbers of users with a realistic opportunity to benefit from Oral Proceedings. On the other hand, there are those that say something is lost when taking part by Video Conference, and that there is missing an important degree of human interaction and non-verbal communication that is fundamental to oral advocacy that the Video Conference format just does not allow. Taking this view, Video Conferencing arguably therefore does not provide parties with their full right to be heard as Articles 113 and 116 EPC had originally intended. And so, it will be interesting to follow how the EPO develops its practice and see what happens when the pilot period comes to an end.
Since the start of the extended pilot period, Håmsø Patentbyrå has had first-hand experience of Oral Proceedings in the Opposition Division by Video Conference. The hearings took place on Zoom. In one case, the hearing involved multiple opponents, and in another translators were also present. The hearings have functioned very smoothly. Under the conditions of the pilot period, the Video Conference solution has helped Håmsø Patentbyrå to represent clients before the EPO in Oral Proceedings from its base in Norway, both efficiently and on equal footing with the other parties involved.
From this point of view, the EPO’s move toward Oral Proceedings by Video Conference levels the playing field for users and removes previously held advantages of firms located in the hearing centres of Munich or the Hague. Applicants from outside Europe can select to be represented by qualified European Patent Attorneys on a competitive basis from a far greater range of countries and locations within Europe than before.
If you have any questions about the above or EPO procedure more generally, then please contact Richard Weaver who is a UK and European Patent Attorney and Partner at Håmsø Patentbyrå in Norway, email: firstname.lastname@example.org, or another member of the European Patent Team at Håmsø Patentbyrå AS, see: www.patent.no.