Following our recent thoughts on the referral to the EPO’s Enlarged Board of Appeal regarding the legality of compulsory video conference (ViCo) oral proceedings, there have been some interesting developments.
ViCo survey results published by epi
The Institute of Professional Representatives before the European Patent Office (epi) published an analysis of results of a survey of its members taken at the end of 2020. The authors concluded that a “majority of respondents … believe that [ViCo] … should not be forced upon unwilling participants after the pandemic”.
A few months on from when the survey was taken, it is difficult to know how valid such a broad conclusion might continue to be.
The conclusion seems to be based primarily on Question 7 of the survey, which asked whether ALL parties should be required to attend oral proceedings by ViCo if ONE party requests it. Roughly half the respondents answered “No” and roughly half answered “Yes” for at least some circumstances (e.g. because the pandemic is still on or if serious reasons are given in the request).
It is also noted that, at the time of taking the survey, only 45% of respondents had actually experienced oral proceedings by ViCo. Furthermore, only 15% had inter parties oral proceedings (either before the Opposition Division or Board of Appeal) as their most recent ViCo experience (see Questions 10-15 of the Survey).
It will be interesting to see how these opinions might have changed following both Opposition Division oral proceedings and Board of Appeal oral proceedings shifting to ViCo since the beginning of the year and thus more parties being required to adopt ViCo as a matter of course. Maybe they liked it.
Technical Board of Appeal rules compulsory oral proceedings by ViCo are lawful
The EPO’s Technical Board of Appeal published a decision from 4 February 2021 confirming that oral proceedings by video conference “are consistent with the right to oral proceedings pursuant to Article 116 EPC” (the law giving parties the right to oral proceedings on request).
This decision was made before the referral of the question to the Enlarged Board of Appeal and thus the Enlarged Board may decide differently. However, it would be surprising if the Technical Board’s reasoning didn’t carry some weight with the Enlarged Board. It would also be very interesting to see the Enlarged Board’s reasoning if they do decide to deviate from the Technical Board’s decision.
Oral proceedings by ViCo to continue until Enlarged Board decision
The President of the EPO has decided oral proceedings by ViCo will continue (including those without the agreement of all parties) until the Enlarged Board has decided on the issue. It was felt this was necessary to guarantee access to justice and ensure the functioning of the EPO while we await the Enlarged Board’s decision.
Administrative Council approves Article 15a RPBA
The Administrative Council of the European Patent Organisation has approved new Article 15a of the Rules of Procedure of the Boards of Appeal (RPBA). Pending the Enlarged Board’s decision, this confirms the legal right of the Boards of Appeal to hold oral proceedings by ViCo without the agreement of all parties.
Here at Kilburn & Strode, we continue to train our attorneys and trainees and to optimise our systems to give our clients the best possible representation, whether by ViCo or in person. Do the events of the last week indicate the momentum is shifting towards ViCo oral proceedings becoming the norm at the EPO post-pandemic? The findings of the Technical Board and approval of new Article 15a RPBA certainly seem to suggest so.
Of course, we won’t know anything for sure until the Enlarged Board issue their decision. The oral proceedings for the referral itself have been scheduled for 28 May 2021, although (as specifically noted on page 3 of the summons) we could get a decision even sooner if the parties inform the Enlarged Board they do not consider oral proceedings expedient and/or envisage they will not attend the oral proceedings.
The irony of oral proceedings to decide on the legality of oral proceedings by video conference being itself conducted by video conference has also not been lost on many. Is it also perhaps indicative of the Enlarged Board’s preliminary view of the matter?
Who ever said European patent law isn’t exciting?
For more information please contact Arun or your usual Kilburn & Strode advisor.