EPO pilot project for ViCo in opposition extended until 31 December 2022

Although requesting oral proceedings to be held by ViCo has been something parties have been able to do for some time, doing so only started to become more commonplace for oral proceedings before the examining division during the past few years. Since March 2020, as a result of the Covid-19 pandemic, oral proceedings before the examining division have been held effectively exclusively by ViCo. It appears likely that this will continue to be the case for all examining division oral proceedings in future, unless there are “serious reasons” against it.

As a result of the Covid-19 pandemic, appeal and opposition oral proceedings have also been held by ViCo in recent years. There is however a greater expectation that there will be a return to in-person oral proceedings for appeals and oppositions than for oral proceedings before the examining division in future, and indeed the Enlarged Board of Appeal did acknowledge in G1/21 that “in-person oral proceedings are for now the optimum format”.

Holding oral proceedings by ViCo offers several advantages over in-person proceedings, namely in terms of savings in time and cost, as well as a reduced environmental impact through minimised travel. Furthermore, it has been noted that holding oral proceedings by ViCo makes it easier for accompanying persons (such as expect witnesses and inventors), as well as members of the public, to attend the oral proceedings, while representatives are able to make use of in-office services during the proceedings such as printing and assistance from colleagues. However, disadvantages of holding oral proceedings by ViCo, such as the perceived greater difficulty in presenting arguments and use of non-verbal communication, as well as risks of internet drop-out and other technical faults, have been noted too. An EPO survey conducted in September 2021 observed that roughly two-thirds of respondents believe the provision of oral-proceedings in opposition by ViCo to be either “good” or “very good”.

Given the generally positive view taken on oral-proceedings in opposition by ViCo, as well as the ongoing impacts and restrictions associated with the Covid-19 pandemic, the EPO has extended the pilot project for oral proceedings in opposition by ViCo until 31 December 2022. Similarly to oral proceedings in examination by ViCo, only “serious reasons” preventing oral proceedings in opposition to be carried out by ViCo may result in the proceedings taking place in-person, and in such cases the proceedings will be postponed until after 31 December 2022.

The EPO is, in parallel with the extension of the pilot project, taking further steps towards helping representatives with oral proceedings via ViCo. Such steps include the implementation of additional features in Zoom, such as digital whiteboards and additional channels for language interpretation and conferring within parties who are disparately located being made available, as well as the updating and broadening of the EPO’s training portfolio for oral proceedings by ViCo.

As ever, D Young & Co remains committed to assisting clients in all matters, including representation at oral proceedings in opposition.