Video conferencing: a golden opportunity to reduce costs in patent proceedings

In a recently published decision of a European Patent Office (EPO) Board of Appeal (BoA) on an appeal against a decision of the Examination Division, T 2068/14, the applicant's professional representatives argued that ex parte oral proceedings should be held by video conferencing: 

"From the representative's current location, the representative has been unable to reach any of the EPO's locations in less than eight hours of travelling, including driving, contingency time and flights. ... Applicants must then effectively arrange and pay for three days of time, travel costs, and accommodation for two overnight stays, and must sometimes do this for more than one person".

The BoA was not convinced:

"Although the EPC [that's the European Patent Convention] safeguards an applicant's right to oral proceedings, it does not also ensure that the costs of attending the oral proceedings in person, possibly with a professional representative, are within the applicant's budget."

Indeed while patents are a great thing, it does cost money to obtain them --  and applicants should not rely on the EPO to remedy their self-imposed inconveniences. The EPC does not contain "poor law" provisions such as financial subsidies or leniencies for parties with a tight budget, contrary to some countries' national patent laws. Accordingly, applicants that operate on a tight budget must carefully consider if they are really and truly prepared to cover the costs entailed in EPC proceedings -- or whether they should rather accept any concessions that might be available under national patent laws. As Merpel notes, if they can't even afford the cost of dealing with the EPO in examination proceedings, and possibly in post-grant opposition proceedings, there's probably little chance of them being to afford the cost of litigating these patents nationally or, as will soon be likely, before the Unified Patent Court, wherever that litigation might be.

In its decision the BoA referred to another appeal against an Examination Division decision, T 1266/07 where the BoA said at para 1.2(b):

" ... oral proceedings held before the examining division are, in accordance with Article 116(3) EPC, not public, whereas those before the boards of appeal are public, Article 116(4) EPC. It will be necessary to ensure that the use of video conferencing is reconciled with the requirement that oral proceedings before the boards be public" (emphasis added).

While the decision in T 2068/14 appears to be correct in law, it seems to this Kat to be quite unacceptable in principle.  We live in an era in which travel is increasingly hazardous and inconvenient on account of security considerations but in which communication technologies have advanced greatly, that ex parte and inter partes proceedings can easily be conducted by video conferencing, with the option of adding third parties and an audience.  

Travel can be fun, but it comes at a cost ...

Much has been said about the need for the forthcoming unitary patent in Europe to be cost-effective and affordable by small and medium-sized enterprises, but somehow this discussion seems to be eternally focused on the fixing of an appropriate level of official fees.  However, official fees represent only a small proportion of an applicant's outlay measured from his or her first visit to a professional representative to the time when a patent has either been granted or buried.  Much as also been said about the need to make Europe more competitive as against the United States; well, the United States Patent & Trademark Office, where travel is already much easier and cheaper than in Europe, already offers appellants both video and telephonic options, with no apparent damage being inflicted on the machinery of justice.

The introduction of a video conferencing option would do much to make the European patent system affordable by those whom it has promised to attract. This Kat hopes that the rules are speedily changed to make it possible. 

Thanks go to Patentanwalt Heiko Sendrowski (Katpat!) for spotting and summarising this decision.

Great cat videos here
Cats conference here