Before the covid pandemic, oral proceedings in examination were usually held face-to-face at the EPO premises. Oral proceedings by VICO had to be explicitly requested together with the request for oral proceedings, and it was up to the examining division to decide whether this request was granted or not. The request for holding the oral proceedings through video conference could be refused, for example for reasons such as the subject-matter of the application being considered unsuitable for VICO or the case having high complexity.
With the pandemic, when remote working became part of our everyday lives, oral proceedings, in both examination and opposition, were (re)scheduled to be held through video conference as from April 2020 and such were equivalent to oral proceedings held on the premises of the EPO. In respect of VICO in examination, this was confirmed by a decision of 17 December 2020 of the President of the EPO, and included in the EPO Guidelines as of November 2021.
As restrictions were relieved throughout Europe, a question was whether face-to-face proceedings at the EPO premises would again become the norm. However, in June 2022, the EPO confirmed that oral proceedings in examination will be continued to be held through video-conference as default.
Oral proceedings in examination may however be held face to face at the EPO premises, if there are “serious reasons against holding them through VICO”: “Where there are serious reasons for not holding the oral proceedings as a VICO, these can be given by either the examining division or the applicant. There must be a high degree of likelihood that these reasons will still apply on the day of the proceedings.” In such case, the oral proceedings are postponed under after 31 December 2022. A request for holding oral proceedings on the premises of the EPO should be submitted as early as possible, preferably be submitted together with the request for oral proceedings. It is at the discretion of the examining division whether to grant such request, and a refusal to that end is not separately appealable.
The EPO provides a few explicit examples of serious reasons for not holding the oral proceedings through VICO: “Examples of serious reasons are, in particular, reasons relating to a participant to the oral proceedings as an individual (e.g. a proven visual impairment that prevents a representative from following oral proceedings on screen) and reasons related to the nature and subject-matter of the proceedings (e.g. where they involve the demonstration or inspection of an object where the haptic features are essential, to the extent that this is possible in accordance with the applicable provisions). Sweeping 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.” Hence, it seems that the criteria for admitting oral proceedings in examination to be held face-to-face will be rather strict. It can also be noted that high complexity of the case is not explicitly included in the present explicit listing of serious reasons for holding the oral proceedings on the EPO premises.
The complexity of a case might indeed be considered one of the disadvantages of holding examination oral proceedings through videoconference. Complex issues are often indeed easier to discuss during a meeting in person, with all participants to the proceedings in one room facilitating easier more direct communication lines. Also, videoconferencing do not bring over the non-verbal communication to the same degree as a meeting face to face.
However, in order to enable the representative to more easier present information and explain the claimed invention and its relation to the prior art, the EPO have facilitated features such as screen sharing and/or the use of digital whiteboards in Zoom.
Other concerns, in respect of video conferencing relate to technical issues, such as connection problems. Such situations have been foreseen by the EPO, ensuring that if the technical problems would have as consequence that Applicant’s rights under Art. 113 and 116 EPC would be violated and this cannot be overcome during the oral proceedings, the oral proceedings have to be rescheduled. This would be the case if the technical problems have as consequence that the oral proceedings held by video conference cannot be conducted openly and fairly, for example in an event of a total or partial breakdown in communication. Although a sudden rescheduling of the oral proceedings would of course be highly undesirable for all involved, at least this provision may be considered to safeguard applicant’s right to be heard. Also, the risk of such serious technical problems may be reduced through appropriate IT structure and support at both the representative side as well as on the EPO side. (Also, let’s not forget that being dependent on flight traffic flying according to schedule also formed a risk.)
On the other hand, holding oral proceedings in examination through video conference can also be considered as providing several advantages. One main advantage relates to avoiding the need for the representative and/or applicant to travel to the EPO location. This makes attending oral proceedings in examination less costly, which may be especially advantageous for applicants whose representative is not located at or close to the EPO location in question. For some clients, in particular those on a low budget, travel costs may be a serious factor when determining whether or not to attend the oral proceedings, and might even be a reason for not attending. Consequently, VICO may be considered to have made attending oral proceedings –making use of the possibility of discussing and arguing for your case and eventually having your invention protected - more equally accessible for applicants throughout Europe. Even more, different individuals representing the client, i.e., the representative and her/his trainee, or the representative and the applicant, for example an inhouse attorney, may attend from different locations. Video conferencing may also be experienced as more time efficient, since the representative can attend the oral proceedings from his/her own office, obviating the need for travel time and reducing the risk of travel disruptions and associated inconvenience. Finally, late time changes in representative, e.g. resulting from sudden or unexpected inability of the representative (or a representative supervising a trainee handling the case), may be more easily dealt with.
Hence, to conclude, oral proceedings in examination before the EPO will, per default, be held via video conference also in the future. It appears that oral proceedings in examination will only be held on the premises of the EPO under very specific circumstances. A request thereto, with an indication of the reasons therefore, should be submitted as early as possible. It remains to be seen how strict the criteria for granting a request for face to face oral proceedings will be handled by the examining divisions.
All in all, in the personal opinion of the author of this article, having experienced a number of VICO oral proceedings in examination, the advantages of having oral proceedings in examination held through video conference in general would outweigh the disadvantages, and seems to provide a fair situation independent of the location of the applicant or their representative. The evaluation of the technical means of the video conference, and the experienced suitability of the subject matter of the case, which has until know been performed by the examining division at the end of each oral proceedings, is much appreciated, and hopefully may lead to further improvements in the conductance of oral proceedings in examination through video conference.