Opposition and examination oral proceedings by videoconference (ViCo) now as standard

In response to the significant travel restrictions that were in place across Europe during the COVID-19 pandemic, the EPO allowed most of its legal hearings – oral proceedings – to be held by video conference (ViCo) rather than in person at its offices in Munich, The Hague and Berlin. However, the use of ViCo hearings was initially a trial only, which the President of the EPO had permitted to run until the end of 2022.

Pleasingly, and we think entirely appropriately, the President of the EPO has recently decided that ViCo hearings will now be the standard format for all future examination and opposition oral proceedings.

In reaching this decision to make ViCo the default format for these legal hearings, the President paid close attention to the responses the EPO received to its extensive consultation on ViCo. Mewburn Ellis attorneys made a significant contribution to this consultation, and we were happy to see that our comments in support of the ViCo format were repeated in the full length report issued by the EPO. As Mewburn Ellis partner Simon Kiddle noted of the report, more than three quarters of respondents rated hearings held by ViCo as “good” or “very good”, which was entirely in keeping with our own experiences with ViCo. It is a positive development by the EPO to make this trial of ViCo hearings a permanent change: all the parties who attend oral proceedings, including the EPO itself, will benefit.

Over the past two years we’ve found ViCo hearings to be a far better format for oral proceedings than the in person hearings that we would attend. Without the need for extensive travel, it is now simpler for attorneys and their clients to attend the oral proceedings, and without the need to travel, all parties can better prepare for the oral proceedings in the days leading up to the hearing. ViCo proceedings have also been well run by the EPO, using familiar technology very well and very effectivity.

Mewburn Ellis has embraced the use of ViCo and all our offices are set up with multiple dedicated ViCo rooms to allow for easy attendance at oral proceedings. We’ve now conducted hundreds of oral proceedings by ViCo from our offices, and we readily adapted our practices to make the most of the technology available to us.

We’ve also found that ViCo oral proceedings work incredibly well despite what might appear to be challenging conditions. A recent highlight of our recent ViCo experiences includes what we think is a record-breaking eight day ViCo hearing led by Mewburn Ellis partner Katherine Green, where Katherine and her team successfully defended their client’s patent in the face of fierce opposition from 11 opponents. We’ve also been able to successfully involve our US- and Japanese-based clients in ViCo oral proceedings: here our clients can directly discuss cases with us as the oral proceedings develop, but without the need to travel to Europe. The EPO uses its technology well to provide simultaneous interpretation of the proceedings to all parties, where needed, between its three official languages (English, French and German), and we’ve also been able to provide live translation into Japanese too, to assist our clients there.

Our use of ViCo as the preferred format for oral proceedings complements our strong desire to be a socially responsible business, and to conduct our work sustainably with as little environmental impact as possible. As the EPO has itself acknowledged, ViCo oral proceedings have significantly reduced the travel impact, and therefore the carbon emissions, for attending oral proceedings. We’re encouraged that in making this technological development the EPO has also been mindful of the environmental burden of old style in person hearings.

As with the original ViCo trial, the EPO will allow for the possibility of an in person hearing, but these will be under very limited and exceptional circumstances. From our experiences over the trail period, we expect that such in person hearings will now be a rarity.

The decision from the President applies to hearings in examination and opposition, and it also extends to the legal division and the receiving section (responsible for filing formalities). However, the decision does not apply to the EPO Boards of Appeal who still retain the discretion to hold oral proceedings in person or by ViCo. We hope that the Boards of Appeal will give careful consideration to the recent decision from the President, and we hope they too will allow for the ready availability of ViCo proceedings for all parties in appeal.