Coronavirus pandemic throws oral proceedings at the EPO into turmoil

The coronavirus pandemic has forced the European Patent Office (EPO) to change its approach to oral proceedings. More and more oral proceedings are held by videoconference, and pilots are underway to introduce email correspondence instead of fax. The EPO’s new policy for oral proceedings before the Boards of Appeal calls for particular vigilance from the interested parties. 

Appeals have face-to-face oral proceedings despite coronavirus restrictions 

The EPO’s current policy is for oral proceedings before the Boards of Appeal to continue face-to-face meetings. A party can request for a videoconference instead, but it will be used only if all parties consent. 

Oral proceedings before the Boards of Appeal are held in Haar on the outskirts of Munich. Due to the safety precautions introduced in response to the coronavirus pandemic, the starting time and venue of appeal proceedings may have to be changed at short notice. The EPO is only able to confirm the time and place approximately three days before each oral proceedings. 

“In order to ensure that the rules on minimum physical distancing can be respected, the starting times of oral proceedings may need to be staggered. Moreover, only a limited number of suitable rooms are available on the Board of Appeal premises in Haar, and some oral proceedings may therefore have to be held at the EPO’s headquarters in the centre of Munich instead. The EPO has discontinued its previous policy of informing parties of a change of venue or starting time, and it is now up to the parties themselves to check for such changes”, European Patent Attorney Marjut Honkasalo explains. 

The Boards of Appeal reinstated their pre-coronavirus procedure at the end of the summer and will no longer contact parties to enquire whether they are able to attend oral proceedings at the scheduled time. Parties and representatives wishing to enter the EPO’s buildings must complete a self-declaration form in which they confirm that they have not been exposed to the virus, experienced cold- or flu-like symptoms or visited any of the high-risk areas identified by the Robert Koch Institute in the previous two weeks. 

“Anyone unable to confirm these statements will be denied access to the premises. The competent Board of Appeals will be informed accordingly and will then decide whether the oral proceedings can be held without that person or whether they will need to be postponed. If a party knows in advance that they will not be able to attend due to, for example, self-isolation, they will now have to request a change of date and hope for the best.” 

Another change to the previous policy is that attendance is now generally restricted to a maximum of two people per party, which in practice usually means a European Patent Attorney and the client’s representative. 

“Sudden changes in travel restrictions can make it impossible for parties to get to Munich or force them into two-week self-isolation on arrival, and visitors may even be denied entry into the EPO’s buildings if the classification of their country of origin changes the day before the oral proceedings. Flights are also in short supply and subject to last-minute cancellations. In the current situation, holding oral proceedings by videoconference would be the fairest and easiest option from a non-German perspective”, Honkasalo says. 

The appeals that the EPO is processing at the moment were filed well before the onset of the coronavirus pandemic, and Honkasalo blames the current issues on unfortunate timing. 

“Appeals against the EPO’s decisions are rare, and if an appeal is filed, the EPO knows that the case is important to the appellant. No-one could have predicted the pandemic or the challenges it would bring. Oral proceedings on any appeals that are filed now are likely to take place after a vaccine has been found for the coronavirus, and the appeals that are at the oral proceedings stage at the moment face the biggest obstacles.”

U-turn in the EPO’s policy for oral proceedings in examination

The opposite is true for oral hearings in examination: the EPO changed its policy in the spring, and all patent applications are now examined by videoconference. Traditional face-to-face oral proceedings are only possible in exceptional circumstances.

 “The EPO has completely reversed its previous practice in this respect. While the EPO’s old policy was to only hold a videoconference in a fraction of cases and only if a special request was made in advance, videoconferencing has now become its standard way of conducting oral proceedings in examination. By July, the EPO had already held one thousand oral hearings by videoconference this year, which must be more than in the last 20 years put together”, Honkasalo says. 

The new practice has come under criticism in countries whose patent attorney offices are located close to the European Patent Office locations. 

“The EPO is sticking to its videoconferencing policy even when attending oral proceedings in person would not be an issue. The new policy is designed to make the procedure fairer. Conducting oral proceedings by videoconference also saves time and money”, Honkasalo explains.

 “The rule for videoconferences used to be that all persons of a party had to be present in the same room, but now everyone can join the proceedings from separate locations. It makes the proceedings run more smoothly especially in the current situation, but having everyone in the same room made it easier for attorneys to communicate with their client without the other parties hearing what was being said. With everyone joining in remotely, attorneys need to set up a separate connection with their client to enable this kind of communication.” 

Piloting of oral proceedings in opposition underway

The coronavirus pandemic has also pushed the EPO to develop better ways to conduct opposition proceedings by videoconference. The EPO launched a pilot project aimed at experimenting with videoconferencing technology for oral proceedings in opposition in the spring, which will run until April 2021. 

There will be no face-to-face meetings for oral proceedings in opposition for the rest of the year, meaning that all remaining oral proceedings scheduled for 2020 will be incorporated into the pilot project or postponed. 

“Owing to the new policy, the EPO has decided to postpone until further notice all oral proceedings in opposition that have not already been confirmed to take place by videoconference or that cannot be held by videoconference with the parties’ consent under the pilot project. Oral proceedings in opposition can only go ahead by videoconference during the pilot project with the consent of all the interested parties: the opponent, the patentee and the EPO”, Honkasalo explains.

The objective of the pilot project is to gradually establish videoconferences as the EPO’s standard way of conducting oral proceedings. What makes the introduction of videoconferencing for opposition proceedings more challenging compared to examination proceedings is the fact that opposition proceedings typically involve a larger number of parties and one or more of the parties may require simultaneous interpreting between the official languages of the EPO. 

“The EPO’s opposition and appeal proceedings are also open to the public, and oral proceedings held by videoconference are even easier for the public to attend: members of the public no longer need to travel to the EPO’s premises to follow proceedings but can tune in from anywhere in the world by simply requesting an access code.”

Marjut Honkasalo
Partner, European Patent Attorney
marjut.honkasalo@kolster.com
+358 50 524 2413

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