Prompted by the coronavirus pandemic, the European Patent Office (EPO) has announced a significant change to the way it will hold hearings – known as ‘oral proceedings’ – moving forward.
What is (and is not) changing?
Until now, hearings before the EPO Examining Divisions (EDs), which are in charge of examining European applications, were normally held in person on the EPO premises. Upon request and at its discretion, the EPO could decide to hold these by videoconference (VC). However, such requests could be denied due to unavailability of VC facilities at the EPO, or if the ED considered that holding the hearing by VC would be unsuitable given the subject matter of the application or the complexity of the case.
The EPO has now made an almost 180° change to its practice: hearings before the EDs will now be held by VC unless there are “serious reasons” against it. The EPO has provided only two examples of such a serious reason, namely the need for direct taking of evidence and “where an impediment prevents an applicant or representative from participating … by videoconference”. Although the EPO could, in principle, accept other reasons, we understand that the EPO considers very few hearings to genuinely need to be held in person.
The change will, in practice, affect all hearings before the EDs which have not already been held. Hearings before the EPO Opposition Divisions and Boards of Appeal are, for the time being, unaffected by this change, and can only be held in person – but watch this space.
What is the impact?
The primary benefit of this change is that it will keep the EPO’s examination process moving, even if current travel restrictions and social distancing measures stay in place for a lengthy period of time. After all, as the maxim goes, justice delayed is justice denied. The EPO has invested considerable effort in recent years in reducing their examination backlog, and will obviously be keen not to see that effort thwarted.
This change also forms part of a wider trend at the EPO towards opening up channels of communication with applicants and their EPO representatives. Indeed, we are finding that Examiners are increasingly open to informal telephone conversations and email exchanges, thus helping to resolve issues and misunderstandings in a more timely and efficient manner. We hope and expect that experience of successful hearings by VC, using new collaboration features like screen sharing, will pave the way for an even more collaborative and interactive approach to the earlier stages of the examination process.
At a time when businesses and organisations are looking at ways to reduce their carbon footprint, this change will also have a positive impact by reducing the need for business travel back-and-forth to the EPO premises in Munich, the Hague and Berlin.
There is no indication that the change is only for the duration of the pandemic and could be reversed once the pandemic is over. There seem to be many reasons for the change to become permanent, but careful review of its impact will be needed to avoid unforeseen consequences and a flood of appeals from applicants alleging that their right to be heard has been violated.
It’s business as (un)usual…
At Kilburn & Strode, we have been successfully holding hearings by VC from our premises for many years now to avoid both the time and cost associated with travel to the EPO premises. The technology that enables this equally allows us to hold hearings from the homes of our attorneys. Every one of us has a laptop, and we are well-practised in working remotely. As a result, even with this change, it’s business as usual… from new locations.
If you have any questions about this change, please contact your usual Kilburn & Strode advisor. For a broader look at the impact of the coronavirus pandemic on the IP systems, please see our Partner Kristina Cornish’s comments.