No April Fool’s joke: A hard move to videoconferencing at the EPO

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I guess most of us have implemented certain changes to business procedures, due to the Covid-19 crisis. There is certainly some truth in the following ‘multiple choice questionnaire’ which I have recently seen first on Twitter (@MBA_ish):

Digitalization driver

Challenging times demand for creative solutions. This certainly holds true for the EPO, too. Clearly, the EPO should not and cannot be shut down completely in these times.

But how to deal with oral proceedings, when crowds of people should be avoided and with all those travel restrictions in place?

The EPO’s approach is to make videoconferencing the general rule for oral proceedings before Examining Divisions; see the Decision of the President of the EPO of 1 April 2020 and the Notice from the EPO of same date.

According to the President’s Decision (Art. 1), face-to-face oral proceedings will only be held

 […] if there are serious reasons against holding the oral proceedings by videoconference such as, in particular, the need to take evidence directly.

The Notice of the EPO (¶3) makes clear that there may be other serious reasons for not holding a videoconference,

[…] for example where an impediment prevents an applicant or representative from participating in oral proceedings held by videoconference.

But at the same token, the Notice makes clear that

[s]weeping 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. Equally, the need to consider written evidence will not qualify as a serious reason.

That’s a pretty drastic change — not only during the current pandemic, but even thereafter. Even though videoconferencing as a means for conducting oral proceedings has been available at the EPO since 1998(!) (see OJ EPO 12/1997, 572), it had not gained much practical relevance. To the best of my knowledge, less than 10% of oral proceedings before Examining Divisions had actually been held by videoconference, even in recent times.

Why is that?

First, it is my understanding that it was the EPO that refused requests for videoconferencing quite often. Thus, there was a demand for more videoconferences.

Second, there are people like me. Of course there are pros and cons for both, videoconferencing and face-to-face oral proceedings. You may call me a flat-earther, but I am a big fan of face-to-face hearings. I would never opt for a videoconference in an important case that is at the brink of being refused (which is why one normally is summoned to oral proceedings, right?). Oral proceedings are the last chance to convince the ED that a patent should be granted. There is more to oral proceedings than just the spoken word and a tiny, delayed and sluggish image of the person who is speaking. Compared to a face-to-face hearing, videoconferencing to me clearly is no more than a second-best solution.

If the case at hand is of less importance for a client, a videoconference might well suffice — and I would no doubt make use of videoconferencing in such cases. It all boils down to costs. But there is a difference between cost-worthy and cheap. When I go to oral proceedings, I do make sure that it is cost-worthy in view of the importance of the case for the client, and I am convinced that I can do the best for my client in a face-to-face hearing.

It is hard for me to accept that a second-best solution is now being implemented on the rush as a standard for conducting oral proceedings before EDs. It may be pragmatic in the current situation, and it may be cost-effective in general. But:

Imposing videoconferencing on all users as a general rule, with very limited exceptions, is not user-friendly.

In my perception, there would well have been other, far less strict possibilities to promote increased usage of videoconferencing, e.g. by just accepting the videoconferencing request of parties that are willing to do the oral proceedings by videoconference.

See also the News Release on the epi‘s website: The President of the EPO had sent a letter to epi (received on 27 March 2020) informing about the planned changes, and user representatives have been informed about it at the SACEPO Working Party on Rules meeting of 31 March 2020. epi expressed concerns with letter of same day; these concerns had also been expressed in the said SACEPO WPR meeting.

UPDATE 20 April 2020:

Some Italian colleagues raised their concerns in an open letter of 11 April 2020 to the President of the EPO; the letter is available here.

UPDATE 22 April 2020:

epi is collecting the experiences of users with video conferencing before Examining Divisions and Opposition Divisions (according to the EPO pilot program). Please report good or bad experiences. Have your say on the epi forum here (EDs) and here (ODs). Thank you.

UPDATE 1 May 2020:

As reported on Kluwer Patent Blog, the EPO’s Central Staff Committee (CSC) apparently commented on the EPO’s intranet  as follows (hyperlinks added, for ease of reference):

[It]would make sense to align the Office with the practice as well as with emergency provisions of its host countries. This would also appear mandated by the Protocol on Privileges and Immunities.

Holding oral proceedings as distributed videoconferences with the members of the division participating at different locations in the Office or at home is part of your initiative of generalising and making teleworking mandatory, which constitutes a fundamental change in the working conditions of a[n] major part of staff. It must therefore be subject to statutory consultation with the COHSEC [Central Occupational Health, Safety and Ergonomics Committee] and the GCC [General Consultative Committee] in accordance with Articles 38(2) and 38a(3) ServRegs.

Since it has been decided to extend the new procedures for oral proceedings in examination beyond the current Corona crisis, in-depth consultation is necessary. The same applies to opposition oral proceedings for which this new procedure appears likewise here to stay.

Opposition oral proceedings are by law public proceedings, cf. Article 116(4) EPC. It is not at all clear how this is guaranteed if the hearing is conducted as a ViCo (see e.g. T1266/07, points 1.2 and 1.3). The preliminary guidance given in VP1’s announcement (…) states that if the division “receive[s] requests of public to attend opposition proceedings performed via ViCo” it should “contact [its] line manager”, presumably that of the first examiner. Aside from the fact that the line manager is not competent for interfering with the discretionary decisions of the Divisions, the public does not need to “request” attendance, or to announce it in advance. A possibility for the public to attend should therefore be guaranteed in all cases, regardless of any advance request. The guidance thus brings examiners into a conflict between the expectations of management and the requirements of the EPC.

A problem of breach of confidentiality might further arise if members of divisions were not able to adequately isolate themselves, especially during examination non-public OP’s and during deliberations.

[A] yet unknown number of examiners cannot establish simultaneously both a Skype for Business connection and an EPO network connection via Pulse-VPN, as would be required for ViCo OPs, because the network hosts the application documents and the EPO email account. Only either connection works fine by itself.

At present there are no clear laws, no guidelines and no technical facilities to allow distributed oral proceedings in examination and opposition proceedings. In the latter case, even “non-distributed” ViCos with divisions on the Office premises would at present not rest on a solid legal basis.

The measures presently foreseen should be immediately halted and reviewed, also involving the Staff Representation.

In view of the additional strain on the examiner’s mental health, we can at present only advise divisions to judiciously choose, weighing all circumstances, whether to conduct oral proceedings by ViCo or rather to postpone them to a later date until circumstances for conducting them either as a classical ViCo from the Office premises or as “standard” proceedings in person are restored.

Note that I cannot independently verify that this is taken verbatim from the EPO’s intranet, but at least I have no reason to doubt that this is the case.

Reported by Martin WILMING

LETTER OF epi

LETTER OF EPO PRESIDENT

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6 Replies to “No April Fool’s joke: A hard move to videoconferencing at the EPO”

  1. I fully share your concerns.

    There is one aspect which should not be neglected when it comes to OP by video conference.

    If the ED and the applicant/representative have not met face to face, it is very difficult to have a good video conference. It is not a technical problem, but a psychological one. Even when people know each other, a video conference has sometimes to be stopped since as I would say, the “current does not flow”.

    Wanting to institutionalise OP in examination is thus not a good solution. May be in a crisis situation, but not as a general way of holding OP in examination.

    As far as OP in opposition are concerned, how can the public character of the OP be guaranteed, cf. Art 116(4). The exception provided in Art 116(4) cannot become the rule, even if the EPO so wishes. The fact that the parties agree to hold OP in opposition in the form of videoconferences is irrelevant, as Art 116(4) does not foresee this exception.

    Only not holding OP in examination and in opposition when evidence has to be taken is anything but acceptable. In examination there is hardly any need of taking evidence. In opposition, this is the case when witnesses have to heard, which only occurs in case of public prior use. And those are not so frequent.

    OP before the Boards in the form of videoconferences have never been envisaged up to now, as the public character of those OP cannot be guaranteed. If it cannot be guaranteed before the Boards, how can it be guaranteed before opposition divisions.

    As often for decisions of the upper management in recent times, they have been devised by people who do not have the faintest idea of the actual work in a division of first instance, but claim to know. Now we have one more about OP, but enough is enough.

    The upper management should deal with the real problems occurring at the EPO, starting with the abominable social atmosphere and the crazy production pressure.

    If I remember well, the Administrative Council expressed the hope that the tensions provoked by the former president were to be alleviated by the new one. He is now in charge for nearly two years, but on this side nothing has changed!

    1. For the time being, the Decision of the President only concerns OP before EDs. Luckily. These OPs are not public ayway. But if the videoconferencing regime were to be extended to oral proceedings before ODs or even the Boards of Appeal, the public character would surely have to be maintained. Technically speaking, there might be solutions for this, e.g. a live stream like the U.K. Supreme Court does it on its website (https://www.supremecourt.uk/live/court-01.html). But then there might well be further concerns re participant’s rights to their own picture, etc. One might also think of live streams not made public on the EPO’s website, but rather only provided at the premises of the EPO. Whatever the solution will be (if and when the regime is rolled out further to ODs and BoA), accessibility for the public must not be more restrictive than it is nowadays.

      In general terms, there is some indication in T 2068/14 that videoconferencing in general is not something that violates Art. 113 or Art. 116; see paragraph 1.2.3:

      “The holding of oral proceedings as a video conference is not expressly provided for in the EPC, its implementing regulations or the RPBA, but neither is it excluded. In the board’s view, while a video conference does not allow such direct communication as the face-to-face meeting involved in conventional oral proceedings, it nevertheless contains the essence of oral proceedings, namely that the board and the parties/representatives can communicate with each other simultaneously.”

      The essence of oral proceedings is thus the ability to communicate with each other, in a simultaneous manner. Communication means more to me than just the spoken word and a tiny, delayed and sluggish image of the person who is speaking. And simultaneous means, in my perception, that I need to be able to catch the reaction of all the persons to whom I am talking. As long as everyday videoconferencing tools cannot closely resemble the impression of a hearing in person (and I really don’t think that this is the case yet), I feel that one can make a valid argument based on this BoA decision that “the essence of oral proceedings” is actually not given anymore. I remain keen to see how this finally unfolds in practice.

  2. Dear Martin, together with other colleagues of mine I addressed a letter to the President of the EPO, raising a number of concerns about the Decision. The epi has published the letter today under the following link:
    https://patentepi.org/assets/uploads/documents/news/Bugnion-Letter-to-EPO-re-OP-ViCo.pdf
    I think representatives should voice their concerns with the EPO, albeit I fear that this Decision is there to stay; my worst fears concern the planned extension of ViCO’s to opposition proceedings.

  3. As a former EPO examiner now working as a professional representative, I can only share your remarks, Attentive Observer.

  4. Dear Alessandro, it is good that you raised your concerns. Even if the EPO’s concise communication in the aftermath of the SACEPO WPR meeting does not mention it, epi raised a lot of similar concerns in that meeting. I do not believe that the new regime will be reverted any time soon. But I do also believe that unsatisfied users will challenge this regime on a case-by-case basis, with respect to the right to be heard, in particular when ViCo does not work out smoothly. We shall see.

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