Oral Proceedings before EPO Opposition Divisions – VC mandatory from January 2021 – will the Board of Appeal follow?

On 10 November 2020 the EPO announced further measures in relation to the Pilot Project to allow opposition hearings to be held by videoconference (VC). Initially, the pilot project was to finish by April 2021. By a Decision of the President, this has now been extended until September 2021.

The full details of the how VC will work in the content of opposition oral proceedings can be found in the Decision of the President of the European Patent Office dated 10 November 2020 concerning the modification and extension of the pilot project for oral proceedings by videoconference before opposition divisions. The key points of the Decision to note are in Article 2:

1. Oral proceedings before opposition divisions are held by videoconference.
2. Notwithstanding paragraph 1, oral proceedings may be held on the premises of the European Patent Office, either at the request of a party or at the instigation of the opposition division if there are serious reasons against holding the oral proceedings by videoconference. If a request to hold oral proceedings on the premises of the European Patent Office is refused, the parties will be informed of the reasons; such a refusal is not separately appealable.
3. Oral proceedings by videoconference are equivalent to oral proceedings held on the premises of the European Patent Office.

Accordingly, from 04 January 2021 it should be expected that the default position will be that Opposition oral proceedings will take place by videoconference.

As the current scheme allows one party to veto videoconference oral proceedings this is an unsurprising change given the increase in the backlog of cases that has built up over the past eight months. Indeed, the EPO has reported that uptake rate of the current “voluntary” scheme for VC oral proceedings has remained low whilst the backlog of unresolved opposition cases has built up with a “resulting loss in timeliness which is critical for access to justice”.

The parties to oral proceedings affected by the new measures will be informed by the EPO.

Regarding the Boards of Appeal, we understand that the President of the Boards of Appeal will soon launch a consultation concerning an amendment to its Rules of Procedure (RPBA) whereby a new rule (15A) will be introduced. The new rule allows a Board of Appeal to compel oral proceedings by videoconference, the draft text of which is as follows:

1. The Board may decide to hold oral proceedings pursuant to A.116 EPC by videoconference if the Board considers it appropriate to do so, either upon request by a party or of its own motion.
2. If oral proceedings are to be held by videoconference pursuant to paragraph (1), the Chair may order a party, representative or accompanying person to attend only remotely. The Chair may allow any member of he Board in the particular appeal to participate remotely. Any access to the videoconference shall be provided in real time.

According to some draft notes seen by HGF, examples of ‘appropriateness’ include (i) the suitability of the case, notably its complexity or the need for interpretation, (ii) the parties’ willingness to attend remotely, (iii) foreseeable travel restrictions and (iv) personal circumstances of the persons due to be involved. Markedly, the notes to A.15A(2) foresee an asymmetry in representation, whereby one party is present at the hearing and another party accesses the Hearing remotely.

The draft timetable for amendment of the RPBA is 01 April 2021 but it is said that Boards ‘may change their practice before that date’. Accordingly, HGF expect that the Boards will apply increased pressure on parties to conduct hearings by videoconference, especially if travel restrictions due to the pandemic continue.

This article was prepared by HGF Partner Dr Chris Moore. If you would like further advice on this or any other matter, please contact Chris. Alternatively, you can contact your usual HGF representative or visit our Contact page to get in touch with your nearest HGF office.