Oral proceedings before examining divisions ("EDs") of the European Patent Office ("EPO") will now be held by videoconference pursuant to the April 1, 2020, decision by the EPO president. The decision applies to all oral proceedings with a summons date of April 2, 2020, or later.

While oral proceedings previously could be held by videoconference, over the years, such requests were often denied due to lack of videoconferencing facilities at the EPO. Despite this, discussions ensued between the EPO and its users in further facilitating the use of videoconferencing, and more recently such requests were regularly granted.

The ongoing novel coronavirus (COVID-19) crisis has undoubtedly been a catalyst for the digital transformation of hearings before EDs; however, the April 1 decision is not a temporary one due to the current disruptions caused by the pandemic. The shift to videoconference as the standard for all examination proceedings is a permanent measure intended to promote a modern, efficient, and sustainable EPO. In a year-long pilot project starting on May 4, 2020, oral proceedings may also be held by videoconference in first-instance opposition proceedings if all parties and the opposition division agree.

Under the new practice, an applicant can still request oral proceedings to take place on the EPO premises in Munich, The Hague, and, in the rare occasion, Berlin. Such requests may be allowable only where "serious reasons," such as direct taking of evidence, necessitate a vis-à-vis hearing. Furthermore, where serious technical problems cannot be overcome, the ED will issue a new summons to ensure the applicant's right to be heard.

Oral proceedings held via videoconference invariably present pros and cons. On the one hand, clients certainly will welcome reduced legal fees and costs associated with traveling to the EPO. This, along with streamlined examination, might actually increase clients' willingness to attend oral proceedings and decrease refiling chains of divisional applications as a measure to avoid hearings. On the other hand, benefits of face-to-face communication will be lost. Indeed, in-person discussions with the ED have proven to be instrumental in efficiently resolving outstanding issues and overall advancement of cases.

Ultimately, time will tell whether videoconferencing will be an adequate and effective alternative to in-person proceedings. 

Originally published 22 April, 2020

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