Düsseldorf, November 12, 2020 – Starting January 4, 2021, consent of the parties will no longer be required for oral proceedings to be held in the form of a videoconference before the Opposition Divisions of the European Patent Office (EPO). The EPO announced this decision of its President on November 10, 2020 as part of its pilot program that began on May 4, 2020. The EPO has been conducting oral proceedings before its Examination and Opposition Divisions via videoconference since April 1, 2020 and May 4, 2020, respectively, in response to the COVID-19-related contact and travel restrictions across Europe. In the particularly important inter partes opposition proceedings, consent of the parties has thus far, however, been required in order to conduct oral proceedings via videoconference.
This approach will be reversed come January 4. The EPO justifies its decision as a means to restore timely access to justice and to curtail the accumulating backlog of unresolved opposition cases. All on-site and in-person opposition hearings had been suspended until December 31, 2020.
It remains to be seen whether a similar decision will be made for oral proceedings in the second instance. So far, the EPO's Boards of Appeal are still conducting videoconference hearings on a voluntary basis and in Cohausz & Florack (C&F)’s experience, have shown a high degree of flexibility, e.g., also holding hybrid hearings (i.e. in which some parties or only their representatives are present in person and the others join via video).
C&F is critical of the obligation to hold oral proceedings by videoconference: "We have gained a lot of experience with videoconference hearings in opposition proceedings before the EPO. Practice has shown that particularly in important cases there is no substitute for the immediacy of in-person oral proceedings", says Mathias Karlhuber, patent attorney and partner at C&F. In addition to technical problems, for example as a result of an unstable Internet connection experienced by some representatives, the lack of direct eye contact is critical: "This is often quite decisive for the arguments and their effect on the Division", Karlhuber continues. Also the attention span and the receptiveness seem to be reduced in video hearings as opposed to in-person hearings.
C&F expects that the mandatory conduct of oral proceedings via videoconference will make the parties’ written pleadings in opposition proceedings even more important. "In the future, it will be even more important to convince the Opposition Division of one’s point of view already in written proceedings and to work towards a favorable preliminary opinion of the division prior to the hearing" says Dr. Arwed Burrichter, patent attorney and partner at C&F. "In our opinion, the chances of being able to turn a negative preliminary opinion of the Opposition Division in one’s favor are significantly lower in a video hearing than in a conventional in-person hearing," says Burrichter.
According to the EPO, oral hearings before the Examination and Opposition Divisions may in the future only be held as in-person hearings at the EPO’s premises if there are serious reasons against holding them via videoconference (e.g. a proven visual impairment or the need to demonstrate an object). For C&F, these exceptions do not go far enough: "At least in the case of particularly important or highly complex hearings, the EPO should, upon request, make an exception to the planned obligation to conduct video hearings", says Dr. Natalie Kirchhofer, patent attorney and partner at C&F. Experience has shown that social distancing and hygiene rules can easily be implemented, e.g., in correspondingly large hearing rooms. Hybrid hearings to reduce the number of participants is a further possibility. "This would be in accordance with the regulations for infection protection – and at the same time would be completely in line with an effective access to justice", says Kirchhofer.
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