EPO Makes Video Conference Mandatory for Opposition Division Oral Proceedings

The EPO announced on 10 November 2020 (further details of which can be found in the EPO's notice and decision), that all opposition division oral proceedings scheduled to take place between 4 January 2021 and 15 September 2021 will take place by video conference, rather than in-person on the premises of the EPO. No opposition division oral proceedings will take place in-person until after 15 September 2021.

This development represents a progression of the measures the EPO has taken in response to the ongoing COVID-19 pandemic. In particular, no examining division or opposition division oral proceedings have been carried out in-person at the EPO since March 2020, with the postponement of all in-person opposition division oral proceedings currently extending to 31 December 2020. Instead, the EPO has been conducting all examining division oral proceedings by video conference since April 2020 (see our report here) and launched a pilot project in May 2020 to conduct opposition division oral proceedings by video conference on a voluntary basis (see our report here).

The original pilot project for opposition division oral proceedings required all of the parties to consent to the hearing taking place by video conference. The EPO has observed that relatively few opposition matters have actually been heard by video conference - it will not always be in the interest of all parties to hold oral proceedings (and thus receive a first instance decision) sooner rather than later, and so many parties will have withheld their consent. Consequently, a significant backlog of unheard opposition division matters has been developing, with the backlog expected to continue increasing in 2021 in view of ongoing travel restrictions resulting from the pandemic. The EPO has thus shifted the default position to hearings being by video conference for all first instance departments, and parties are no longer able to insist on in-person hearings, which in practice amounts to insisting on a delay.

The EPO has been expanding its technical capabilities, such that hearings involving simultaneous translation (see here) and hearings involving multiple parties are now possible using the Zoom platform.

Under the extended pilot project, there is no longer any requirement for all parties to consent to the oral proceedings taking place by video conference. The default position will now be that opposition division oral proceedings are by video conference, unless there are "serious reasons" why they should take place in person. Examples of serious reasons given by the EPO are the involvement of an individual with a proven visual impairment that prevents the individual following proceedings by videoconference, or a requirement to observe or inspect an object. In such cases, the oral proceedings will be rescheduled to take place in person after 15 September 2021. In practice, we expect that it will be difficult to successfully argue that there is a serious reason justifying in-person oral proceedings.

The new measures will apply to all opposition division oral proceedings scheduled to take place between 4 January 2021 and 15 September 2021. We expect the EPO to convert existing in-person hearings scheduled to take place between 4 January 2021 and 15 September 2021 into video conference oral proceedings over the coming weeks.

The Boards of Appeal have not yet made an announcement regarding compulsory video conference hearings, but it seems likely that the Boards of Appeal will adopt a similar position in the near future.

Although the new measures will not be universally popular, they will be welcomed by many users of the European patent system and will bring the EPO into line with the approach already being taking by many national courts. It will be interesting to see if the EPO decides in due course to extend the project beyond 15 September 2021, such that the move from in-person to video conference oral proceedings becomes permanent.

For more information on video conference oral proceedings at the EPO, see our briefing here.