What is changing?
As we have previously reported, oral proceedings by videoconference are now the norm during pre-grant examination at the EPO. These just involve the Applicant and the three-person EPO Examining Division, are not public and have been possible for many years, on request to the EPO.
However, post-grant opposition proceedings are different, as not only is the proprietor involved but also the opponent, of which there may be more than one. To avoid opposition oral proceedings being delayed indefinitely during the coronavirus pandemic, the EPO has decided to conduct a pilot project for oral proceedings by videoconference before EPO Opposition Divisions.
This pilot will run from 4 May 2020 until 30 April 2021.
How will it work?
The agreement of all parties involved is needed and non-agreement seems to be available. Further, videoconference oral proceedings will not be available if the Opposition Division has decided to take evidence or there are other serious reasons for not doing so (details are not yet given, but examples will undoubtedly arise).
During Opposition Division oral proceedings, documents are to be submitted by email, as is the current case with proceedings before the Examining Divisions. Each party provides an email address for a copy of the documents. Further, screens may be shared with the consent of the Opposition Division.
The language of Opposition oral proceedings is the language of the patent (English, French or German). An opponent can file their Opposition and present orally in any of these languages. As such, the EPO may need, as usual, to arrange for simultaneous translations for those parties that request it. How this would work in the context of oral proceedings held by videoconference remains unclear. Our contacts at the EPO indicate that oral proceedings requiring simultaneous translation will be unsuitable to be held by videoconference, so for these cases it appears that oral proceedings will be delayed until appearance in person is again possible.
What if things go wrong?
The EPO has advised that if technical problems occur that prevent the proceedings by videoconference from being conducted, the Opposition Division will issue a new summons to oral proceedings. It is not quite clear how this will work if the technical problems occur part way through the proceedings, or before the final Decision of the Opposition Division is verbally announced. However, what is clear is that if a party agrees to the hearing by videoconference, but then does not attend for any reason other than technical reasons, the oral proceedings will continue without that party. It seems more important than ever to ensure correct contact details for the Opposition Division (perhaps the formalities officer) are known in advance so direct contact can be made should things go awry.
Can I listen in?
Oral proceedings before EPO Opposition Divisions are public. When the oral proceedings were previously scheduled at the EPO premises, any member of the public could attend. How will this now happen in practice? The EPO has advised that EPO Opposition Division oral proceedings remain public and any member of the public can attend by giving prior notice that they wish to do so. Access will then be available for them to attend remotely. It is not clear if the oral proceedings will be available to attend for members of the public who wish to attend last minute, without giving (much) notice.
Business as (un)usual
Kilburn & Strode attorneys have been successfully holding examination oral proceedings by videoconference from our premises for many years. The technology that enabled this equally allows our attorneys to attend the oral proceedings from their homes during these times of remote working. Indeed, Kilburn & Strode attorneys have already conducted oral proceedings by videoconference from their homes during the last week. As a result, even with this change, it’s business as usual…