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25 November 2022PatentsMuireann Bolger

EPO backs permanent move to video hearings

Oral proceedings to take place by online except “in certain circumstances” | COVID-19 cited as a catalyst for change | CIPA hails move as positive, while others lambast “disgraceful” decision.

The European Patent Office (EPO) has decided that the future format of oral proceedings in opposition should be done by videoconference (ViCo), with in-person proceedings only conducted “in certain circumstances”.

The office confirmed this week that President António Campinos has decided that videoconferencing should become the default format of oral proceedings in opposition from January 1, 2023, following the conclusion of a pilot project.

COVID-19 effects

Commenting on the decision, Campinos noted that the COVID-19 pandemic had been a catalyst for change affecting many aspects of the patent granting process.

“Applicants and their representatives have already found that the widespread adoption of videoconferencing is permanently changing the way they do business.

“Most have welcomed the way in which we have embraced new technologies and the opportunities they provide to save time and money, and reduce carbon emissions, while still allowing them to argue their case effectively.

“The pilot has taught us all many valuable lessons and allowed us to test various ways of working. After more than two and a half years it is right that we now provide clarity and adopt ViCos as the standard format.”

The president’s decision will be published in the EPO’s Official Journal at the end of November.

Sustainable development

The news comes following the EPO’s publication of its final report on the pilot project, which showed that the switch from in-person to virtual hearings had achieved significant environmental benefits, with a “conservative estimate”  of more than 1,000 tonnes of CO2 carbon emissions saved in 2021.

The EPO also discovered that 77% of respondents found videoconferencing to be “good” or “very good”.

The EPO’s confirmation statement noted that Campinos had carefully evaluated its conclusions, as well as the feedback from the numerous stakeholders.

Alasdair Poore, president of the Chartered Institute of Patent Attorneys (CIPA), hailed the decision as a “step forward”.

“CIPA welcomes the news that holding oral proceedings by videoconference will become the default position at the EPO. This is an important step forward for access to justice and also supports the drive to make the legal system more sustainable.”

‘A lot is lost’

But not all welcomed the development, with some querying whether this position could affect the strength of litigants' advocacy.

The EPO’s announcements of its decision on LinkedIn attracted considerable attention.

Alessandro Cossu, patent attorney at Bugnion, branded the decision as “disgraceful”.

In his view, there is also scientific evidence that persuasiveness, particularly in the case of legal arguments, can be significantly bolstered in a face-to-face setting, where a speaker’s ability to “connect” with its audience plays a significant role.

“These limitations will ultimately affect a party’s right to be heard within the meaning of Article 113(1) EPC in a negative manner,” he argued.

Among those also commenting on the posts, John Fisher, partner at GJE, acknowledged the obvious benefits of videoconferencing but insisted that it had its downsides.

“I am still a long way short of 100% convinced that advocacy over a Zoom call is as effective as advocacy in person,” he wrote.

“A lot is lost in terms of body language, eye contact, and really knowing when an important point has been understood and digested. I would have preferred a situation where the parties were given the choice to attend in person if the value of the case and the benefits of in person advocacy outweighed the downsides.”

The ‘gold standard’

This viewpoint was shared by Cees Mulder, professor emeritus of European patent law at the University of Maastricht, who contended on the same platform that parties should have the right to be heard in person.

“The Enlarged Board holds that the parties have a fundamental right to oral proceedings that provide them with the opportunity to be heard in accordance with Article 113 EPC and Article 6 ECHR,” he said.

He argued that a hearing in person is the “optimum format” or the “gold standard” and definitely fulfils the requirements of these articles.

“It is also the format that the legislator had in mind when drafting Article 116 EPC. Therefore, in-person hearings should be the default option.”

Parties can only be denied this option for good reasons, he added. “The decision of the President [of the] EPO is not based on the decision of the EBoA”.

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