EPO guidance: requesting "in-person" or ViCo oral proceedings
It is increasingly becoming important, during the written procedure leading to oral proceedings, for parties to the proceedings to provide detailed reasons for or against an in-person hearing. Merely expressing a preference for a particular format is essentially irrelevant. Further, based on developing case law, it seems that referring to G 1/21 and stating in person is the “gold standard” is not, on its own, sufficient.
Mandatory videoconferencing was introduced during the Covid-19 pandemic in a trial phase. Initially, the platform used did not allow virtual break-out meeting rooms or screen sharing, so that all participants could view the shared screen. However, since the end of 2021, Zoom has been the standard platform for oral proceedings held by videoconferencing and it does have these features as well as improved transmission quality.
In October 2021, the Enlarged Board of Appeal determined in G 1/21 that the limitations of video technology make videoconferencing suboptimal as a format for oral proceedings. In G 1/21 it was held that in-person oral proceedings represented the “gold-standard”, and should be the default option in the absence of a disruption (such as the Covid-19 pandemic).
From the beginning of 2023, videoconferencing became the default format of oral proceedings before the Examining Divisions and Opposition Divisions following a decision issued by the EPO. Only if there are serious reasons against holding the oral proceedings by videoconference, and the division permits it, will proceedings in opposition be conducted in person.
It is important to note that this decision does not apply to the Boards of Appeal. Under Article 15a RPBA, the Boards of Appeal have the discretion to hold proceedings by videoconferencing if they consider it appropriate, either upon request by a party or its own motion.
As can be seen from the selected key case law discussed below, the use of videoconferencing, in particular at the Boards of Appeal, remains far from a settled matter, and the case law continues to evolve around its use.
Case law developments since G1/21
The Board of Appeal in T 0758/20 held that G 1/21 cannot be read as restricting the possibility of oral proceedings by videoconference only in the case of a general emergency. In this decision, it was noted that G 1/21 does not exclude that there are other circumstances specific to a case that justify the decision not to hold in-person oral proceedings.
In T 1158/20, the Board of Appeal held that there had been improvements to videoconferencing allowing high-quality picture and sound. Accordingly, oral proceedings by videoconference are no longer as far from in-person hearings as they were when G1/21 was issued. As a result, it was held that in-person oral proceedings can often be considered equivalent to oral proceedings by videoconference such that the gold-standard of in-person hearings no longer applies.
However, the Board of Appeal in T 2432/19 held that in-person oral proceedings can only be denied under very limited conditions (even in a situation of general emergency such as a pandemic). Further, the Board of Appeal confirmed that parties cannot force the boards to conduct videoconferences instead of in-person oral proceedings. In particular, the Board of Appeal considered that videoconferences, at least with current technology, can only provide a suboptimal form of communication and that parties have a right to the optimum format for oral proceedings (that is, in-person oral proceedings). The Board of Appeal considered that, in this case, the parties may have resorted to detailed explanations revolving around the figures in the description, and, in the Board of Appeal’s experience, it was easier for a party wishing to explain the functional effects of structural features to do this by use of a flip chart. Moreover, the Board of Appeal considered that the filing of such sketches by email during a videoconference oral proceedings results in delays, and may well break the flow of a party’s submission.
T 0618/21 somewhat contrasts to T 2432/19 and supports T 1158/20. In T 0618/21, the Board of Appeal held that the decisive criterion for using videoconferencing is “expediency”, which implies that videoconferencing is fundamentally suitable for achieving the purpose intended by the oral proceedings, and also appears sensible (relevant). In particular, like T 1158/20, the Board of Appeal noted that due to the technical developments which have occurred since G1/21, and the greater experience of all those involved, videoconferences can in most cases now be regarded as an almost equivalent alternative to in person. The Board of Appeal discussed that the specific circumstances of some cases can mean that the format of the videoconference is unsuitable. In particular, the Board of Appeal gave consideration to the issue of drawings being made live on a flip chart. The Board of Appeal highlighted that there is the option of either making a drawing live in a suitable drawing program and letting the other participants participate via a split screen. The Board of Appeal noted that as an alternative, handwritten and scanned drawings with additions can be brought to the attention of the other participants in the videoconference and explained. As a further option, relevant documents could also be emailed to the Board of Appeal in the run-up to or during the course of the hearing, which would then distribute them to the other parties.
The Board of Appeal acknowledged that while there might be a slight loss of spontaneity using videoconference for drawings, it can be clearer and more vivid than is possible over the distances in a meeting room. As a further point, the Board of Appeal noted that, due to the parallel image and sound transmission, the facial expressions of the parties can sometimes be observed better, since you can keep an eye on the other participants side by side on the screen. The Board of Appeal highlighted that the criteria to be taken into account when considering suitability for videoconferences include: additional expenditure of time and money for a journey to the premises of the Board of Appeal, as well as the environment impact of travel. The Board of Appeal acknowledged that videoconferencing would not be considered as equivalent to in-person if, for example, a sample is to be inspected or a direct physical interaction is required.
In T 0423/22, the Board of Appeal held that hearing a witness by videoconference did not infringe a party’s right to be heard. The Board of Appeal acknowledged that part of the witness’ body language was not visible. However, the Board of Appeal held that the credibility of a witness is not determined based largely on their body language, and even less on body language outside the frame visible in a videoconference. Moreover, as was also concluded in T0618/21, the Board of Appeal highlighted that facial reactions can be seen in greater detail on a screen, compared to witnesses several meters away in a room. The Board of Appeal also noted that movements such as a trembling knee may cause movements of other visible parts of the body. The Board of Appeal emphasised that a witness’s credibility is based mainly on their testimony and the absence of contradictions. Like T 0618/21 and T 1158/20, this Board of Appeal also highlighted the technical improvements that have occurred since G 1/21.
As mentioned above, there is discretion for an Examining Division or an Opposition Division to allow in-person proceedings, and discretion for a Board of Appeal to use videoconferencing. Currently, the trend seems to be that more Board of Appeal oral proceedings are being held by videoconferencing. Based on the developing case law, factors that could be considered when preparing arguments for or against an in-person hearing include:
- Saving time and cost and reducing the environmental impact of travel may be persuasive that a hearing should be by videoconference.
- The need to use a flip chart or to present drawings may or may not be persuasive that a hearing should be in-person. Different Boards of Appeal seem to take a different approach to this (see T 0618/21 and T 2432/19).
- The need to hear a witness may not necessarily be persuasive that a hearing should be in-person.
- The need to inspect an object may be persuasive for an in-person hearing.
- Personal limitations of individual participants can be persuasive that a hearing should either be in-person or should be by videoconference.
We are well equipped to carry out oral proceedings by videoconference and have extensive experience in doing so.
If you have any questions about oral proceedings by videoconference, please review our Guide to ViCo (see link below) or speak to your D Young & Co representative.
Guide to ViCo at the EPO
We have drawn from our experience of ex parte and inter partes oral proceedings before the EPO by video conference to prepare a guide for participants covering what to expect and how best to prepare. The guide includes our handy client "Checklist for ViCo".Read more
Decision of the EPO concerning the format of oral proceedings before examining and opposition divisions, the Legal Division and the Receiving Station. OJ EPO 2022, A103, European Patent Office, published 30 November 2022: dycip.com/a103