23/11/2020
The EPO recently reported the results of an ongoing pilot project for Opposition hearings by videoconference (ViCo) and at the same time announced that all Examination and Opposition oral proceedings between 4th January 2021 and 15th September 2021 will be held by ViCo.
Opposition hearings will be delayed until after 15th September 2021 only where there are serious reasons preventing the use of ViCo and agreement of the parties to the proceedings is no longer required.
Even before the Coronavirus pandemic, Reddie & Grose’s attorneys had significant experience conducting Examining Division Oral Proceedings by ViCo, and this has only increased during the pandemic, with our team now regularly also handling Opposition and Boards of Appeal hearings by ViCo.
Given the continuing restrictions on travel and in-person gatherings we believe this commitment to ViCo hearings is a positive change which will allow Opposition and Board of Appeal hearings to proceed with limited delay and greater reliability. While there are still challenges to handling hearings by ViCo we feel they are outweighed by the many advantages that they offer.
Exclusive use of ViCo for Opposition hearings will be the norm for at least the next nine months (although we are still seeing in-person hearings being scheduled for summer 2021), but the landscape is moving, and we expect hearings by ViCo to be a common occurrence even after the initial period ends in September 2021. In addition, the Boards of Appeal look poised to move more appeals to ViCo, subject to the outcome of a current user consultation.
We understand that you may be anxious about this trend towards hearings by ViCo. You may think that you could be disadvantaged in a hearing via ViCo, or that attending a hearing via ViCo will make it harder to convince the Opposition Division/Board of Appeal of your arguments. While there are clearly cases in which it is better to attend hearings “in person”, hearings by ViCo are a great alternative and work well in most cases.
We have found that tailoring arguments to better suit the ViCo environment, and leveraging the advantages that a ViCo hearing offers, can help to tip a case in your favour.
The team at Reddie & Grose is ready to support you with your upcoming ViCo hearing. If you are uncomfortable managing a hearing then we would be happy to take over the representation, or we can simply advise you on how best to prepare for the hearing yourself. Either way, as it looks like ViCos are here to stay, here are a few thoughts on how to get the most out of them.
The upsides of ViCo
Although we understand that many of you may still prefer in-person hearings, here are some of the advantages to ViCo hearings to help put your mind at ease:
- clients and experts from outside Europe may find it easier and cheaper to attend hearings as there is no need to travel to Munich/The Hague/Berlin (although this may mean a very early start for American clients and a very late night for those in Asia);
- proceedings are more predictable and efficient. In contrast to in-person hearings, our experience of ViCo hearings is that they always restart when the Opposition Division/Board of Appeal says they will and there seem to be fewer rounds of arguments on the same point;
- with everything happening electronically, documents can be shared easily with the Opposition Division/Board of Appeal; the other parties; or internally within your team. There is no more passing around multiple copies of new auxiliary requests or marked-up versions of the prior art; and
- even in the worst case scenario, if there are technical problems the Opposition Division/Board of Appeal will reschedule the hearing and a phone number is provided to reach the Division or Board in an emergency.
Still room for improvement
However, while hearings by ViCo offer clients some clear advantages it should be remembered that pre-Covid, ViCo inter partes hearings were not possible.
Understandably, many representatives, particularly those local to the EPO, may never have taken part in a ViCo and members of the Opposition Divisions and Boards of Appeal may not have experienced them either. This lack of experience has led to some teething problems, as everyone scrambles to get used to the “new normal.” But we are already seeing improvements in the way hearings are handled. Indeed, in some cases our experienced attorneys have helped smooth the way when technical and procedural challenges arose. We see the following as just a few of the areas that need consideration:
- Reading the body language of Division and Board members is a critical part of good advocacy but in early hearings some of the platforms being used meant that the members were so small, they were barely visible. Fortunately, Opposition hearings have recently been switched from Skype to Zoom which should alleviate some of these issues;
- A ViCo certainly requires stamina. The downtime between hearing sessions is taken up by videoconferences with the team so hearings become long days with no break from screen time. Although the difficulty of finding a secluded corner of the EPO during breaks at in-person hearings could be frustrating, it does offer a change of scenery that is difficult to replicate in ViCo hearings; and
- Cases involving an interpreter will take some getting used to. Although ViCo platforms allow for real-time interpretation, it comes at the cost of not being able to hear the representative speaking in their original language. Much like the body language issue already mentioned, not being able to hear the emotion or intonations in a representative’s submission can significantly change the impression of the arguments being presented.
In just 6-months we have seen some major improvements, but the mass use in ViCo is still in its infancy and more changes are on the way…
Latest developments
Last week, the Boards of Appeal of the EPO announced a user consultation on a new proposed article to be inserted into the Rules of Procedure of the Boards of Appeal (RPBA). While we at Reddie & Grose broadly welcome Appeal hearings by ViCo the devil is in the detail of how these provisions will be put into practice. Reddie & Grose will be submitting its thoughts on the newly proposed Article and we look forward to hearing the thoughts of others on these changes.
Whatever the outcome, we are ready to support you going forwards.
This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking any action in reliance on it.
