Increased use of Video Conferencing at the European Patent Office

Prior to the refusal of a patent application by the European Patent Office (EPO), an applicant has a right to be heard in person at oral proceedings. Historically this always involved travel to the EPO in Munich, Berlin or The Hague. However, in recent years an applicant has been able to request that the oral proceedings be held by videoconference. The relevant examining division was then able to decide whether or not to allow the request. Often the request would be granted, unless the issues at hand were considered to be particularly complex.

Oral proceedings are also held in opposition proceedings at the EPO. Opposition oral proceedings are inter partes proceedings in which the validity of a granted patent is in issue.

Due to the coronavirus pandemic, since 1st April 2020 all examination oral proceedings have been held by videoconference.

The EPO began a pilot project on 4th May 2020 in which opposition oral proceedings are held by videoconference. All parties had to agree to oral proceedings being held by videoconference in order to take part in the pilot.

On 10th November 2020, the EPO announced that the pilot project for opposition oral proceedings held by videoconference will continue until 15 September 2021. Furthermore, in view of the increase in the number of unresolved oppositions, for oral proceedings that are scheduled to take place on or after 4th January 2021, the agreement of the parties to hold oral proceedings in opposition proceedings by videoconference will no longer be required under the pilot.

Now, as a general rule, where oral proceedings have been requested or are considered expedient by the examining division, the parties will be summoned to oral proceedings held by videoconference.

Oral proceedings before examining and opposition divisions may currently only be held on the premises of the European Patent Office if there are serious reasons against holding them by videoconference. Examples of serious reasons are, in particular, reasons relating to a participant to the oral proceedings as an individual (e.g. a proven visual impairment) and reasons related to the nature and subject matter of the proceedings (e.g. where they involve the demonstration or inspection of an object where the haptic features are essential, to the extent that this is possible in accordance with the applicable provisions). The EPO has stated that “sweeping objections against the reliability of videoconferencing technology or the non-availability of videoconferencing equipment will, as a rule, not qualify as serious reasons in this regard”.

At Swindell & Pearson we have been using video conferencing for EPO oral proceedings for many years. Preparation and attendance at oral proceedings can be time-intensive for applicants and their representatives. We welcome the expansion of the use of videoconferencing in oral proceedings as a positive step which will reduce the time requirement and provide improved access to justice for applicants.