The EPO has announced that as of 1st January 2023, videoconference (“VICO”) will become the standard format for first instance opposition oral proceedings. This move follows the publication last week of an EPO report on the success of the pilot scheme, under which videoconferencing has been used since the outset of the COVID-19 pandemic, with over three-quarters of users reportedly rating videoconferencing positively. In-person hearings will continue to be available, but only as the exception where there are serious reasons against holding the oral proceedings by VICO. The EPO has also confirmed that this “VICO by default” approach will continue to apply to oral proceedings before the Examining Divisions, Legal Division and Receiving Section.

First instance oral proceedings at the EPO

Since the outset of the COVID-19 pandemic, the EPO has been running a pilot project for opposition oral proceedings to be held by videoconference (VICO). The pilot project had a successful start, and VICO became the default for oral proceedings before the Examining Divisions, Legal Division and Receiving Section. Although the pilot project ends on 31st December 2022, the President of the EPO has now confirmed that the EPO will continue to embrace the VICO format after that date for all first instance oral proceedings.

The Decision of the President of the EPO confirms that, where oral proceedings are scheduled to take place from 1st January 2023:

• Oral proceedings before Examining Divisions, Opposition Divisions, the Legal Division and the Receiving Section (“the division”) will be held by VICO.
• Notwithstanding paragraph 1, oral proceedings may be held on the premises of the EPO, either at the request of the party or at the instigation of the division, if there are serious reasons against using VICO.

There is no exhaustive list of what may constitute serious reasons for avoiding VICO, but the EPO has published an accompanying notice which provides a few examples of what might be considered serious reasons. These examples include medical reasons that prevent a participant using VICO and cases involving physical objects that need to be demonstrated or inspected in person to be fully understood.

The EPO clarified that objections against the reliability of the VICO technology, or non-availability of VICO equipment, will not qualify as serious reasons. Parties wishing to hold oral proceedings on the premises of the EPO are advised to file a request with the division in question as early as possible, accompanied by an explanation of why serious reasons apply. Decisions on such matters are not separately appealable.

The Decision also confirms that attendees, including members of the division, may connect to the oral proceedings from different locations, meaning the divisions may confer in a “virtual deliberation room”.

Appeal oral proceedings at the EPO

The President’s Decision does not apply to oral proceedings before the Boards of Appeal. The Boards have also conducted oral proceedings by VICO since 2020, but absent a request from one or more of the parties, they are increasingly now returning to the in‑person format (at their premises in Haar and at the EPO’s Isar building in Munich) as the risks associated with the COVID-19 pandemic fade.

The Boards’ ability to use VICO was confirmed when they introduced new Article 15a of the Rules of Procedure of the Boards of Appeal back in 2020. This new rule confirmed that the Boards could conduct oral proceedings by VICO if they considered it appropriate to do so, even without the agreement of the parties concerned. The rule change also permitted the use of “hybrid” proceedings where attendees, or even Board members, could in principle attend in-person hearings by VICO. The Enlarged Board subsequently decided in G 1/21 that the Boards could use VICO without the consent of parties during a “period of general emergency impairing the parties’ possibilities to attend in-person oral proceedings at the EPO premises”.

It remains unclear what defines the beginning and end of such a general emergency, or whether the Boards can insist on VICO outside such an emergency.  Our recent experience indicates that the Boards are now typically returning to in-person appeal hearings as the default, which is in line with comments in G 1/21 that hearings in-person are the “optimum format”.

Positive experiences with videoconference oral proceedings

The team at Carpmaels & Ransford has a wealth of experience in representing clients in oral proceedings held by VICO. Oral proceedings in examination have been held by VICO for a long time and, since the start of the pandemic, our attorneys have gathered plenty of experience conducting both opposition and appeal hearings by videoconference. This includes one of the first opposition hearings to be held in this forum, numerous VICO hearings where simultaneous translation is provided for the parties, and VICO hearings involving multiple representatives from over ten parties.

Our experiences to date have largely been positive. For instance, the EPO has been careful to ensure the technology is fully functional for all parties before and during the oral proceedings. Simultaneous translation facilities work well.

As the EPO notes in last week’s report, the recent use of VICO as standard for oral proceedings has led to advantages for clients and members of the public, who can join the hearing from anywhere in the world, thus providing increased access to key EPO hearings. Indeed, the report says the EPO has observed a twentyfold increase in attendance by the public at oral proceedings in opposition following the introduction of VICO. They have also been able to expand access to competent interpreters as a result of remote attendance.

The continued use of VICO should help to minimise travel to and from the EPO’s premises, allowing for time and cost savings, reducing the environmental impact of hearings, and improving access to hearings for a more diverse range of clients and representatives. While the EPO report and the President’s subsequent announcement are eager to emphasise the benefits, some have observed downsides to VICO, such as difficulties in using non-verbal communication. The Enlarged Board of Appeal had even acknowledged in G 1/21 that in-person hearings are the ”gold standard”, which is at odds with the findings in the EPO report. Nevertheless, the EPO clearly considers that, for first instance hearings, any downsides are outweighed by the advantages.

Our team of EP representatives is looking forward to continuing to represent our clients both virtually and in person at hearings before the EPO divisions and the Boards of Appeal.