In view of the ongoing disruptions caused by the Coronavirus (COVID-19) the opportunity to conduct oral proceeding before the EPO by video-conference has gained unprecedented relevance. In the last few weeks, the EPO has greatly facilitated the use of video-conferencing and held a number of oral proceedings in examination remotely.
The EPO has however gone a step further and, with the Decision of the President dated 1 April 2020, made video-conferencing the standard way to conduct oral proceedings in examination. A request for a face to face hearing may be submitted by the Applicant, however, the granting of such a request will be at the sole discretion of the division.
The EPO also intends to extend the video-conferencing practice to opposition proceeding and has therefore decided to run a pilot project from 4 May 2020 until 30 April 2021, in which the suitability of video-conferencing for opposition division oral proceedings will be assessed (Decision of the President dated 14 April 2020).
In contrast to oral proceedings in examination, an opposition division hearing will not take place via videoconference unless all parties agree. In addition, oral proceedings will not be conducted by video-conference if the opposition division has to take evidences, if interpretation is needed or if there are other “serious reasons” for not doing so.
The representatives and any accompanying persons (such as technical experts) will be allowed to connect to the video-conference from separate locations, provided that “the number of additional participants does not impair the efficient conduct of the oral proceedings”.
Since oral proceedings before opposition divisions are public, anyone will be able to follow the hearing remotely upon giving prior notice, or on the premises of the European Patent Office where the Opposition division is set up.
During oral proceedings by videoconference, new documents may be submitted by any party and transmitted to the other parties by email.
If technical problems prevent the video-conference from being conducted and cannot be overcome, the opposition division will issue a new summons to oral proceedings.
While video-conferencing undoubtedly contributes to a more modern and sustainable European Patent System, it may represent an obstacle to effective communication among parties and may also, in some cases, potentially result in the violation of the fundamental party’s right to be heard.
Therefore, Murgitroyd very much welcome the decision of the President to run a pilot project in opposition to evaluate the advantages and the challenges associated with remote hearings, instead of making video-conferencing mandatory, as done for examination oral proceedings.
Currently opposition division oral proceedings are not being held at the premises of the EPO, and may not resume for some time. Parties now have the opportunity to advance the proceedings by consenting to hold the hearing by video-conference. And, since it will not necessarily be in the interest of all parties to hold oral proceedings sooner rather than later, there may not be many instances in which all parties agree to video-conferencing. Nevertheless, we hope that the pilot project will be able to indicate a satisfactory way forward after April 2021.
For more information, please contact Dr. Laura Fè:
T: +49 (0) 89 309 071 100