Notice from the European Patent Office dated 17 December 2020 concerning the taking of evidence by videoconference by examining and opposition divisions
1. By decision dated 15 December 2020, Rules 117 and 118 of the Implementing Regulations to the EPC will be amended with effect from 1 January 2021.[ 1 ] The revised provisions relate to the formal requirements for the taking of evidence, i.e. the decision on taking evidence (Rule 117 EPC) and the summons of the party, witness or expert to be heard (Rule 118 EPC). The amendments aim to clarify how evidence can be taken by videoconference in proceedings before the European Patent Office (EPO).
2. If oral proceedings are held by videoconference, evidence must be taken by videoconference as well. Upon request of a party, witness or expert summoned to give evidence before the EPO, or if otherwise considered to be expedient, the examining or opposition division in charge (hereinafter: "the division") may also decide to hear the party, witness or expert by videoconference when oral proceedings are conducted on the premises of the EPO.
Taking of evidence by hearing a party, witness or expert
3. The division will indicate in the decision on taking evidence (Rule 117 EPC) whether the hearing of parties, witnesses or experts will be conducted by videoconference.
4. When summoned to give evidence by videoconference, parties, witnesses or experts are requested to provide an email address that the EPO can use to communicate the connection details and any other technical information prior to the taking of that evidence. They are also asked to provide a telephone number at which they can be contacted in the case of technical issues or if the connection to the videoconference is not established. This information is excluded from file inspection and is not provided to the parties.
5. Parties, witnesses and experts summoned to give oral evidence are expected to connect to the videoconference using their own or third-party equipment with a sufficiently stable internet connection, and at a place where they can give oral evidence free from interruptions and disturbances. Detailed information on the technology and tools used by the EPO and on the minimum technical requirements is available on the EPO website and will be communicated to the parties, witnesses and experts prior to the taking of evidence. Such information may occasionally be updated.
6. At the time indicated in the summons, and at any other time indicated by the chairperson in the course of the oral proceedings, the party, witness or expert must connect to the videoconference as indicated in the summons, and stay connected, even if the division does not immediately admit them to the videoconference session. If the party, witness or expert is not connected to the videoconference when the division wishes to admit them, the EPO will contact them by telephone and/or email and ask them to connect.
7. Other than that, witnesses and experts summoned to be heard by videoconference may not connect to the videoconference or otherwise participate as members of the public, or listen to or obtain information about the oral proceedings, until such time as they are dismissed or informed that they will not be heard.
8. Irrespective of the place at which they connect to the videoconference, a party, witness or expert giving evidence before the EPO may not take any instructions or receive guidance or support in relation to the content of their testimony, or otherwise be influenced by another person. If the division considers it advisable, it may issue a request to the competent court in the country of residence of the party, witness or expert concerned to re-examine the testimony under oath or in an equally binding form (Rule 120(2) EPC).
9. If the division intends to present selected documents from the file to the party, witness or expert, the document is shared with that person by providing a link to the document in the European Patent Register. Alternatively, the document may be sent by email to the email address indicated by that person, in which case the documents are sent in parallel by email to the parties participating in the oral proceedings.
10. A party, witness or expert who wishes to illustrate their testimony can either make drawings on paper as they speak and show them to the camera or use the videoconferencing tool's whiteboard, if available.
11. A witness summoned to testify before the EPO is entitled to appropriate compensation for loss of earnings, and experts to fees for their work, after they have fulfilled their duties or tasks (Rule 122(3) EPC). Witnesses and experts are equally entitled to reimbursement of expenses for travel and subsistence in accordance with Rule 122(2) EPC; this also applies in relation to travel to the place where the witness or expert connects to the oral proceedings by videoconference, if any, on condition that such travel is necessary.
12. The possibility for the EPO to take evidence by videoconference, and the possibility for the party, witness or expert to request to be heard by videoconference, are without prejudice to the right of a party, witness or expert to request to be heard by a competent court in their country of residence pursuant to Rule 120(1) EPC.
13. A party, witness or expert summoned to give oral evidence during oral proceedings on the premises of the EPO may request to be heard by videoconference within the period indicated in the summons. The granting of a request of this kind will be at the discretion of the division.
Taking of evidence by inspection
14. The taking of evidence by inspection (Article 117(1)(f) EPC) may be ordered and carried out with respect to any object that can be made available on the premises of the EPO. If the division decides to take evidence by inspection in the form of a videoconference, it will order the party having requested the inspection to make the object available on the premises of the EPO, unless the object is already available.
15. The division will instruct one of its members to carry out the inspection with the assistance of any necessary support services of the EPO, where required.
16. The inspection will be conducted in the same way as if the taking of evidence were taking place in the physical presence of the parties. The relevant parts, elements, movements or other features of the object to be inspected will be shown to a camera so that the parties and other participants to the oral proceedings can see them on screen. The division member conducting the inspection can be guided by the other members, parties, witnesses or experts to present the object in such a way that the participants gain a visual impression of the relevant technical features.
17. An inspection will not be carried out by videoconference where the taking of evidence concerns the haptic feel, texture, handling experience or any other feature that cannot be properly transmitted by videoconference.
[ 1 ] Decision of the Administrative Council CA/D 12/20 dated 15 December 2020 (OJ EPO 2020, A132).