The pilot project for oral proceedings in opposition proceedings by video conference (VICO) started during the pandemic and has received positive feedback.1
The President of the EPO has therefore declared (Decision of 22 November 2022 – here) that, as of 1 January 2023, VICOs will become the default format for oral proceedings in opposition. Only in exceptional circumstances when the opposition division permits it, will oral proceedings in opposition be conducted in person.
The president believes that VICO has enabled parties to save on time and money whilst reducing carbon emissions from travelling in person.
Accordingly oral proceedings will only be held in person if requested by a party or at the instigation of the Opposition Division if there are serious reasons against holding the proceedings by video conference. If a party's request is refused the refusal is not separately appealable.
Given the experience during the pandemic, and as set out in the Pilot Project Final Report [1], the taking of evidence, including hearing witnesses and inspection, has been successfully conducted by VICO and so is not likely to amount to serious reasons for conducting oral proceedings in person. An exception may be where inspection cannot be adequately conducted using video equipment.
Please see here for the official notice from the EPO.
The decision of the President does not affect Oral Proceedings at the Boards of Appeal. Indeed, in the Enlarged Board of Appeal Decision G1/21 the Enlarged Board clearly stated that whilst oral proceedings by VICO were compatible with the right to be heard enshrined in the EPC they were suboptimal compared with in-person hearings and, as such, in-person hearings should, in the absence of a pandemic, be the default option (Reason 45).
Accordingly we do not expect the President's Decision to have a knock-on effect at the Board of Appeal.
Footnotes
1 Pilot Project Final Report November 2022 (here) – over 77% of respondents found oral proceedings to be "good" or "very good"
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