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FAQ - Oral proceedings held by videoconference

FAQ - Oral proceedings held by videoconference

Questions

Technical questions for oral proceedings held by videoconference

Oral proceedings by VICO in examination

Oral proceedings by VICO in opposition (pilot)

Answers

Technical questions for oral proceedings held by videoconference


Which technical systems can I use?

The EPO supports the following technologies for connecting to interviews and oral proceedings held by videoconference (VICO):

  • Microsoft Skype for Business (SfB) Clients and SfB Room Systems
  • Browser-based web meetings via Skype for Business Web App
  • SIP/H.323 video-conferencing systems

No specific hardware is needed to join an SfB VICO.

The SfB browser plugin, which is available free of charge, is sufficient (see technical guidelines).

Other systems such as (standard) Skype or Zoom cannot be used at the moment.


What will I see on the screen? Can the division see both me and the applicant at the same time if we are in different locations? Can the other party see me the whole time?

You should normally be able to see all the participants.

All cameras should be switched on at the beginning of the VICO in order to allow for the identities of the participants to be checked. You may then wish to switch off your camera to reduce the bandwidth requirements and to switch it back on along with your microphone when you are given the floor by the chair.


What should I do if the sound is poor?

To be able to use the Skype Web App you should have at least 2Mbps of free up- and download bandwidth.


If the members of the division are in different locations, how will they all receive any documents I send by email at the same time?

At the beginning of the oral proceedings, the chair will explain how to file submissions and will provide the email address to be used by all parties. The member of the division receiving the email will forward the email with its attachment to the other members. Please note that emails from external parties to the EPO pass through filters and can take a few minutes to arrive if they include attachments.


Can I take a break if I get tired of speaking to the screen?

As in proceedings with physical presence, you should let the chair know if you need a break.


How are the breaks organised?

The division will put the meeting on hold, which will automatically mute the connection. Once the break is finished the division will resume the call.


Will the system be shut down during the break and will we need to reconnect afterwards?

No, the system will not be shut down, but people may leave the meeting and reconnect afterwards.


Do I need special equipment for videoconferencing and what if the connection or reconnection fails?

You do not need any special hardware to join an SfB VICO. The SfB browser plugin, which is available free of charge, is sufficient (see technical guidelines). Please make sure you use a good quality webcam, audio device and monitor. To be able to use the Skype Web App you should have at least 2Mbps of free up- and download bandwidth.

Prior to the oral proceedings applicants will be asked to provide a telephone number to be used during the VICO and in case technical issues arise.

The chair may also provide a telephone number for contacting the division at the beginning of the oral proceedings.

If the connection/reconnection fails, the division will contact the party concerned by phone. Alternatively, the party can send an email to the division or call them. Technical support will be on hand.

Where, notwithstanding all efforts of the participants, technical problems prevent the oral proceedings by videoconference from being conducted, a new summons to oral proceedings will be issued. As a rule, such new oral proceedings will be held by videoconference, unless there are serious reasons for not doing so (see point 10 of the Notice from the European Patent Office dated 1 April 2020 concerning oral proceedings and interviews to be held by videoconference).


Can I leave my microphone on the whole time? There is often a delay when switching it back on.

The chair will decide how to conduct the oral proceedings but, in order to avoid background noise, the microphones of all participants other than the chair should normally be muted.

The parties and members of the division other than the chair will switch on their microphones/cameras when they are given the floor by the chair. Delays in activation of the microphone will be taken into account.


Can I use the premises of my national patent office to hold a videoconference?

Please contact your national office direct. But please note that you don’t need any special hardware to join a VICO.


What alternatives are there should the available internet connection not be suitable?

Should a videoconference not be possible at a specific location due to an unsuitable internet connection, you may travel to a location where there is a suitable internet connection. If this is not possible, it will be necessary to hold oral proceedings with physical presence. We strongly recommend that you perform a test of the internet connection prior to the date of the oral proceedings.


What requirements are in place for signing documents filed by email during a videoconference?

See Article 2 of the Decision of the President of the EPO dated 13 May 2020 concerning the filing of documents during telephone consultations and during interviews and oral proceedings held by video-conference.


What formats are accepted for email attachments (PDF only or other options such as photos from a smartphone)?

See Article 4 of the Decision of the President of the EPO dated 13 May 2020 concerning the filing of documents during telephone consultations and during interviews and oral proceedings held by video-conference.


Oral proceedings by VICO in examination


Can either the applicant and/or the examining division cite “serious reasons” for holding the oral proceedings in person?

Yes. Where there are serious reasons for not holding the oral proceedings as a videoconference, these can be given by either the examining division or the applicant. These reasons must foreseeably persist on the day of the oral proceedings.


Can I request conversion of a physical oral proceedings into a videoconference?

Yes. The oral proceedings will be converted from a physical meeting to a videoconference provided that the examining division does not find serious reasons not to do so.


What is the legal basis for conducting oral proceedings by VICO?

Article 116(1) EPC does not mention the location or form of oral proceedings. It therefore does not require oral proceedings to be held in the physical presence of the applicant before the division. Rather, the form of the oral proceedings must ensure that applicants can present their arguments orally and that the division can communicate to the applicant the grounds and evidence on which it intends to base its decision. These requirements are fulfilled in the case of oral proceedings held by VICO since the division and the applicant can communicate with each other simultaneously (T 2068/14, Reasons, 1.2.3).

For exceptional cases in which an applicant’s rights under Articles 113(1) and 116 EPC may be violated by the holding of oral proceedings by VICO (for example, if an applicant or representative has a hearing impediment which prevents them from participating in oral proceedings by VICO) the Notice from the European Patent Office dated 1 April 2020 concerning oral proceedings and interviews to be held by videoconference states that oral proceedings will be held on the premises of the EPO.


Is a legal basis in the EPC required for conducting oral proceedings by VICO without the applicant’s consent or contrary to their request?

The holding of oral proceedings by VICO is not excluded under Article 116 EPC or any other provision of the EPC. Rather, as with other administrative measures concerning oral proceedings such as determining their location (T 1012/03, at 49), the form in which oral proceedings are held is left to the organisational powers of the President of the EPO under Article 10(2)(a) EPC. The powers of the President explicitly include measures which affect the procedural rights of applicants, such as defining that the right to oral proceedings is to be exercised by means of a VICO. It follows that Article 10(2)(a) EPC together with the Notice from the European Patent Office dated 1 April 2020 concerning oral proceedings and interviews to be held by videoconference provide a sufficient legal basis for the introduction of “VICO by default”.


Should routine requests for oral proceedings indicate that the party would still prefer to attend the oral proceedings in person?

Where an applicant has serious reasons for oral proceedings to be held in person, which foreseeably persists on the day of the oral proceedings, a request to that effect should be submitted as early as possible. Should the request not be allowed, the division will inform the parties that the oral proceedings will take place by videoconference and will provide a brief reasoning as to why the request cannot be granted. No appealable decision will be issued on the matter.


When should a request for oral proceedings with physical presence be submitted?

Requests for oral proceedings to be held by way of exception on the premises of the EPO should be filed as early as possible, preferably together with the request for oral proceedings. The granting of a request for oral proceedings to be held on the premises of the EPO will be at the discretion of the competent division. If the request is received after the summons to oral proceedings and cannot be allowed, the division will inform the applicant that the oral proceedings will take place by videoconference as set out in the summons and will provide a brief reasoning as to why the request cannot be granted. If the request is received before the summons has been issued, the reasons for the refusal will be given in the annex to the summons. In either case, no appealable decision will be issued on the matter. If a request for oral proceedings on the premises of the EPO is received after the summons to oral proceedings by videoconference has been issued and the request is allowed, the applicant will be informed that oral proceedings will be held on the premises of the EPO as requested. The date of the oral proceedings will remain unchanged.


What happens if an applicant cannot comply with the technical requirements or is not able to install the necessary software?

Generally speaking, sweeping objections to the reliability of videoconferencing technology or the non-availability of videoconferencing equipment do not qualify as serious reasons for the proceedings to be held on EPO premises. Neither does the need to consider written evidence. If it really is not possible for a party to meet the technical requirements for participating in a videoconference with the EPO, a request for oral proceedings to be held by way of exception on the premises of the EPO should be filed as early as possible together with detailed reasons. The granting of requests for oral proceedings to be held on the premises of the EPO is at the discretion of the competent division.


Oral proceedings by VICO in opposition (pilot)


How can I be sure that the other party is listening to the proceedings?

The other party does not need to listen if it does not wish to listen. It is important to ensure that the other party had a chance to listen to what was said.


Is it possible to prevent the public from interrupting or interfering with the proceedings?

The pilot will explore the technical possibilities available for ensuring that the public is not able to interfere with the proceedings. As in oral proceedings with physical presence, ensuring the proper conduct of the oral proceedings is the task of the chair.


What if the other party files documents and I don’t receive them?

The division shares all documents with all parties. It is the responsibility of the chair to ensure that all parties are in possession of the latest version of the documents.


What if the other party deliberately breaks the connection?

The division will contact the party that has left the proceedings and attempt to reconnect. Should it not be possible to reconnect due to technical issues experienced by the party, the reasons for the technical failure will be shared with the other parties. Such situations will be dealt with on a case-by-case basis.


What if I think that the division didn’t or couldn’t listen to my arguments?

As in oral proceedings with physical presence, you should make the division aware of this.


How can the public attend oral proceedings held by VICO?

The public can either observe the oral proceedings from a room on the premises of the EPO to which the oral proceedings are transmitted or request connection details from the EPO to participate in the VICO.


Shouldn’t oral proceedings in opposition by VICO be tested in a demo environment before a decision is taken on whether to go ahead with them?

A test environment has been set up. For more information, see the update on oral proceedings and the technical guidelines on the EPO website.

What will be the effect of oral proceedings by VICO in the long term? Shouldn’t it be evaluated first?

We will run a pilot first to see how well the concept works. A proper assessment of the results will be made at the end of the pilot. The pilot will be closely monitored to ensure that all parties have the opportunity to present their case, as is currently the situation in oral proceedings with physical presence.


How can we determine that VICO participants are actually in one of the member states?

The EPC does not require the applicant/parties to the proceedings to be physically in one of the member states in order to participate in oral proceedings by VICO.


Do the tools support the possibility of having more than one representative or technical expert present at the proceedings?

Yes.


Will the EPO implement a system which allows (technically and procedurally) the parties to have confidential discussions during the breaks?

If individuals belonging to a party decide to connect from different locations, they should agree beforehand on means for confidential discussions.


What measures are in place to counter difficulties with submissions?

See Decision of the President of the EPO dated 13 May 2020 concerning the filing of documents during telephone consultations and during interviews and oral proceedings held by videoconference.


How will the pilot test situations involving one or more of the following: multiple opponents, interpreting and the taking of evidence?

The pilot will start with straightforward cases and move on to more complex situations over the course of the year. At the beginning of the pilot, oral proceedings by VICO will not be arranged for cases involving multiple opponents, interpreting or the taking of evidence.


How will members of the public be prevented from recording oral proceedings?

In general, at oral proceedings under Article 116 EPC only EPO employees are allowed to introduce any kind of sound recording device into the hearing room, see Notice of the Vice-Presidents Directorate-General 2 and 3 dated 25 February 1986, OJ EPO 1986, 63. The same applies to video-recordings, see point 8 of the Notice from the EPO dated 1 April 2020 concerning oral proceedings and interviews to be held by videoconference, which prohibits any recording or retransmission of image or sound recording. Both the parties and the public will be expected to abide by these rules. The prohibition implies that there is no lawful way to record the oral proceedings and as such no use may be made of any recording.


Is the agreement of all the parties required in order to hold oral proceedings by VICO?

Yes. The pilot will only cover cases where all the parties agree to the oral proceedings being held as a VICO.