BREAKING: The legality of Board of Appeal oral proceedings by video conference has been referred to the EBA

News has reached IPKat that a Board of Appeal has referred to the Enlarged Board of Appeal (EBA) the question of whether mandatory appeal hearings via video conference are legal. The news has been reported by a patent firm attendant at the Board of Appeal proceedings at which the question was referred, reported here

In order to avoid a growing back-log of cases during the COVID-19 pandemic, the EPO has been forced to transition to holding oral proceedings almost exclusively by video-conference (ViCo). The EPO also appears to be preparing for oral proceedings to be the new norm even once the pandemic is over. Particularly, at the beginning of this year, a new rule of procedure of the Boards of Appeal (RPBA) (Article 15a) was introduced. Article 15a permits a Board of Appeal to hold oral proceedings by ViCo whenever "the Board considers it appropriate to do so" (IPKat: The inexorable rise of EPO oral proceedings by video conference). 

The new reality

New Article 15a has been met with a mixed response. Strong opponents of Article 15a have argued that the article is incompatible with the wording of the EPC. It seems that parties to a recent Board of Appeal ViCo appeal hearing felt aggrieved enough on this issue [Merpel: or just wanted to delay proceedings?] to request a referral to the EBA on the question of whether ViCo proceedings can be mandated by a Board of Appeal. Details of the referral are currently sketchy, and we await further information, in particular of the wording of the referred question. 

The news of this latest referral reminds this Kat of the 2019 EBA referral asking whether Haar was really in Munich (G2/19), and thus whether the relocation of the Boards of Appeal to Haar was legal under the EPC (IPKat). The present referral, like that of G2/19, could be said to be as much of a political question as a legal one. Patent attorney firms with a strong presence in Munich have publicised their strong opposition to the new Article 15a RPBA, citing both the legal argument against new Article 15a and the perceived disadvantages of ViCo compared to in-person oral proceedings. By contrast, CIPA (representing UK patent attorneys) is unapologetically strongly in favour of oral proceedings by ViCo. 

In G2/19 the EBA found that holding oral proceedings in Haar did not infringe a party's right to be heard. A similar [Merpel: and some would say commonsensical?] approach from the EBA in the present case would be to either reject the referral or find no legal issues with Article 15a. Either way, parties eager for their appeal to be heard before the Boards of Appeal can only hope for a swift resolution to the referral. 

UPDATE 15 Feb 2021

The EBA referral comes from Board of Appeal (3.5.02) case T1807/15 EP1609239. Minutes from the oral proceedings may be read here


BREAKING: The legality of Board of Appeal oral proceedings by video conference has been referred to the EBA BREAKING: The legality of Board of Appeal oral proceedings by video conference has been referred to the EBA Reviewed by Rose Hughes on Tuesday, February 09, 2021 Rating: 5

59 comments:

  1. Dear Kitty, I think there is more to the question of lawfulness of ViCos than just delay. If the EPO, especially the first instances, had chosen to host a server on its own premises, one which does not have AI analyse the video and audio data (as Zoom openly admits to), our beloved GDPR and our fundamental rights (as laid out here: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12012P/TXT&from=EN) might not have gotten in the way. Currently they do. So what are we to do, ignore it? The EPO has recently developed a cowboy mentality which runs the risk of destroying the respect it has earned over the decades. And since you mentioned G2/19, how about this little gem from the EBoA: "Die Nutzer des Angebots der Europäischen Patentorganisation werden zwar darauf vertrauen dürfen, dass die Organe des Europäischen Patentamts ihre Handlungen nicht an beliebigen dritten Orten vornehmen." Arbitrary "third locations" - difficult to think of a better description of the current mode, in which the three members of the EPO tribunals may sit anywhere, not to speak of the representatives and the parties, and the data is streamed via a server of unknown location...

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    1. Dear Anonymous, the hearings via Zoom at the EPO are public, so there cannot be any privacy issue here.
      On the other hand, non-public hearings at the EPO are held via Skype for Business.

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    2. So how public is public, and why does it matter?

      https://zoom.us/terms where it reads "ZOOM OBLIGATIONS FOR CONTENT. Zoom will not access, view or process Content except (a) as provided for in this Agreement and in Zoom’s Privacy Statement; (b) as authorized or instructed by You" -> as per the EPO, our authorization is no longer necessary, is it?

      As to the "Privacy Statement", that can be found at https://zoom.us/privacy and it reads that Zoom may create, automatically through use of the services, from so-called "Operation Data" aggregated data to improve Zoom's products.

      For me, Zoom is not a party to the proceedings, and is not the EPO either. So sharing all that data with Zoom, with the declared purposes, cannot be reconciled with my data privacy rights. The point is that the "public" in in-person hearings, is prevented from recording and otherwise machine-processing data collected during oral proceedings, and Zoom is allowed to do so.

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  2. The Convention Watchdog
    After G 3/19, the next test for the Boards' of Appeal Independence:
    Who will sit in the panel of the EBA deciding this case? Those who drafted and proposed the new Art. 15a RPBA and eagerly joined the position of the EPO that Article 116 EPC allows VICOs without the consent of the parties and told the users that Art. 15a RPBA is a provision only clarifying the Boards' discretion?fi

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    1. An excellent point! However, on this occasion, a party to the proceedings has the option of raising objections under Article 24(3) EPC. They would just need to take care not to take any procedural steps before objecting.

      The President of the Boards of Appeal was involved in proposing new Article 15a RPBA. On its own, that is enough to cause a reasonable onlooker to conclude that a party might have good reasons to doubt his impartiality on the question of the legality of mandating OPs by VICO.

      It is also worth noting that the President of the Boards of Appeal seems to have supported a user consultation on new Article 15a RPBA that is notable for two things. Firstly, users were provided with only a VERY short deadline for providing comments. Secondly, the results of the consultation have not been published, save for numbers of responses received (and from whom). Whilst others might view this constellation of facts as indicating that the "user consultation" was a sham exercise (with the rubber-stamping of new Article 15a RPBA being preordained regardless of the feedback received), I could not possibly comment.

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    2. @The Convention Watchdog
      The next test for the Boards' of Appeal Independence is not this one, but G 4/19

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  3. There is a clear public interest in VICO proceedings for Opposition and Appeal, as they may be more easily attended by parties and the public, leading to a lower barrier to justice and a higher degree of scrutiny.

    Some parties have requested delays to oral proceedings because the right to be heard includes the right to be in the same room as the other participants to understand their body language!

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  4. There is a difference between being public and data being analysed by a third party sitting outside the EU.

    Although privacy/safety has been improved in Zoom, some companies still refuse to use it for videoconferencing. They must have their reasons.

    A short videoconference was held recently in which the EPO with the help of epi gave some further information about OP by ViCo. Some insights
    - The BA are moving from Skype for Business to Zoom.
    - Only Zoom is foreseen as platform in first instance. No other possibility will be offered by the EPO.
    - The EPO claims that the servers used are all in Europe, but cannot prove it.
    - The representative of D 5.2 (patent procedure) expressed the hope that if a witness is summoned and heard by ViCo, t the witness would not be at the same time watching the OP as public. There are no means to hinder this, and she was counting with the professionalism of all those involved……

    I fully agree that the EPO has recently developed a cowboy mentality which runs the risk of destroying the respect it has earned over the decades. It is not only the problems of OP by ViCo.

    Parties have now to look in the register to be sure that they will have a complete case be it in opposition or in appeal. Only the opposition and the reply to it will be forwarded to the parties. The same applies to the BA who will only forward the appeal and the reply to it to the parties.

    This is not what has to be expected from a service orientated organisation like the EPO. Even in R 7/09, the EBA found that the parties and their representatives have no duty to monitor the proceedings themselves by regularly inspecting the electronic file. But at this time the EBA had not yet developed the notion of “dynamic interpretation”.

    That during the pandemic, the possibility of holding OP by ViCo is offered, this does not mean that it should become the default setting after the pandemic.

    That on top of this, the members of the deciding body can be scattered around Europe is adding insult to injury.

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    1. "That on top of this, the members of the deciding body can be scattered around Europe is adding insult to injury."

      In what way?

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    2. In what way? How about this way.

      You are defendant in a trial by jury. The 12 members of the jury are each 500 miles apart from each of the other 11 members. The jury "retires" to deliberate, and returns with a majority verdict "Guilty". Are you upset by that. Would you have preferred that the 12 jury members were all physically in the same room for their deliberations?

      Given that the EPO operates a three (or sometimes five) person jury, to find the facts, would you as an EPA or client of an EPA, prefer that these EPO wallahs all sit together to debate and decide the case? Once your patent is found by a TBA to be invalid, it's curtains for you, mate.

      What worries me (having read the Kahnemann and Haidt books on the way humans have a "righteous mind" which is prone to jump to conclusions and then justify them with spurious logic) is that the EPO is effectively scratching the tradition of having a panel decide a case. Increasingly, these days, it's a Decision by one person, rubber-stamped afterwards by the other "panel" members. Cowboy behaviour, indeed.

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    3. Max:

      As long as the members of the board - or the jury, in your case - can communicate with one another, and be understood, and come to a decision, what difference does it make whether they are all physically in the same room or not? A collective decision needs to be reached at the end. I understand and sympathise with the idea that remote communication is not "the same" (simultaneous talking becomes even more cacophonous, body language is perhaps lost) but if all members must eventually sign off on the conclusion - whether unanimously or by majority vote - then surely any divergence is counteracted in the final decision.

      The issue of EPO panels increasingly "rubber-stamping" the opinion of the first member was already apparent when proceedings were all done in person. I deplore that direction of travel too, but I see a move to remote hearings as a separate issue. To put it differently: if the divisions/Boards are already moving to a "rubber stamping" model, as sad as that may be, the format of the hearing is irrelevant.

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    4. @Attentive:
      "The representative of D 5.2 (patent procedure) expressed the hope that if a witness is summoned and heard by ViCo, t the witness would not be at the same time watching the OP as public."
      I do not understand this issue: if a person attends OP as a witness, why/how should it attend the same OP also as a member of the public?

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    5. I concede that the issue of "rubber stamping" is not the same as the issue whether the Board members sit 800 km apart from each other. If the members of the 3-member "jury" do go "the extra mile" though, to debate with each other the decisive points in issue, then being able to summon up the audio and video recording of the course of the oral proceedings might even lead to a stronger decision.

      You know, like in a Rugby Union international match, with video referees.

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    6. To Anonymous of 11 February 2021 at 08:34:00
      When a witness is heard on EPO premises, he is identified at the beginning of the OP and then sent out so that he does not know what has been discussed before he is called in the room to give his testimony. This is the guarantee that his testimony is not tinted by information which could influence him. The procedure is the same as in courts.

      When the hearing is done by video it is not possible to find out whether he has been listening and seeing the discussion prior to his appearance. This is to me a real problem. When asking for a link as public, he will not be as stupid as to give his real name.

      The EPO is aware of this but is not in a position to check. I find this not acceptable.
      I have witnessed oppositions which were all fake and the witnesses were manifestly lying trough their teeth. I dare think what they could have said if they knew what was said before their hearing.

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  5. Extraneous Attorney

    The referring Board of Appeal must be credited for not avoiding the issue. The proper legal basis in the EPC for forcing parties to attend oral proceedings via videoconference against their wishes was suspiciously lacking. (As I have always said, it is another issue when all the parties request videoconference, as they are effectively waiving their right to in-person oral proceedings.)

    As in G3/19, this is not a mere technical issue, but a separation of powers issue. And in such a case, as Justice Kavanaugh once wrote: "this case boils down to one fundamental question: Who decides?" Depending on how the EBA rules, either those drafting the RPBA will get to decide, or the EPC contracting states will.

    But this time, the EBA will not be able to render a jugment of Solomon like it did in G3/19.

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  6. Rose / Merpel: it is simply not the case that "In G2/19 the EBA found that Haar was indeed in Munich". The EBA ducked this particular issue (see the opinion at C.III.1: "This objection does not per se fall within the boards' jurisdiction"). The EBA's later comments (at C.IV.2 of the opinion) were therefore obiter. In fact, the third question in G2/19 was answered on the (legally rather dubious) grounds that there was no infringement of the right to be heard by conducting proceedings in Haar.

    The decision in G2/19 could be perceived as the EBA tolerating the conduct of oral proceedings in a POTENTIALLY unlawful location. In this respect, G2/19 was a truly "political" decision, as if the location was indeed lawful then the EBA really ought to have definitely ruled on that point.

    There is always a chance that the EBA will do its best to duck the tricky political issues that will be raised if and when it receives the new referral. However, on this occasion, they do not appear to have any easy get-outs ... as ruling on the interpretation of Article 116 EPC is clearly within their jurisdiction.

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    1. Isn't the "easy get-out" for the EBA simply for it to find the referral inadmissible?

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    2. Thanks Proof of the pudding - duly corrected!

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    3. Rose: I would still take issue with the suggestion that the EBA's ruling in G2/19 was in any way a "common sense" decision.

      In essence, Question 3 in G2/19 probed the issue of who has the power to decide which location(s) are lawful for the conduct of oral proceedings before the Boards of Appeal of the EPO. The EBA therefore needed to choose whether the power resides with the legislators (ie the delegations of the EPC Member States) and/or with the President of the EPO. Having failed to answer that question, it remains possible that the conduct of oral proceedings at Haar is not in accordance with the EPC. I do not need to explain to you what the possible consequences could be if a national court were to reach that conclusion (for example, subsequent to a complaint from an aggrieved party to appeal proceedings at the EPO).

      The best that I can say about G2/19 is that I can imagine worse things from the perspective of the right to be heard than being forced to conduct oral proceedings at Haar. Less convenient that oral proceedings conducted in Munich, certainly. But nothing too extreme. But, for anyone that was not a member of the EBA in G2/19, that conclusion alone is clearly no answer the question of whether Haar is a lawful location under the EPC.

      I would also take issue with your new suggestion (picking up on that of Anon Y. Mouse) that the EBA could simply find the new referral to be inadmissible.

      Prior to 2020, the case law of the Boards of Appeal of the EPO was entirely consistent in interpreting Article 116 EPC in a manner that is DIRECTLY CONTRADICTORY to Article 15a RPBA. There is also the small matter that Article 15a RPBA is not yet in force. Thus, the law has not (yet) changed. Even after 1 April 2021, there is also a strong argument that Article 15a RPBA will not change the law because it "conflicts" (in the sense of Article 164(2) EPC) with Article 116 EPC, as previously interpreted by the Boards of Appeal.

      In the light of the above, it would be absurd to suggest that the referring Board does not require a decision from the EBA in order to decide the case in which the question(s) have arisen.

      If, despite the above, the EBA finds the referral to be inadmissible, my view is that this would conclusively demonstrate that the Boards are not adequately independent (in the manner required by TRIPS, etc) ... though some might argue that G2/19 and G3/19 show that this particular ship has already sailed.

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    4. @Proof:

      My suggestion was made with tongue planted firmly in cheek, albeit not entirely without suspicion that things may go this way.

      The question of the legality of ViCo oral proceedings is undoubtedly a tricky, potentially political, one. It is clear to most of us what the desired "correct" outcome will be from the point of view of the EPO management and (at least some of the members of) the Boards. And as noted above, there is a potential for a conflict of interest insofar as anyone on the EBA also involved in the adoption of new Art15a RPBA is concerned. Taking all of these circumstances into account, any final decision of the EBA is inevitably going to be controversial from one side or the other. Not least, a decision that new Art15a is illegal would offend the management (to the detriment of the career prospects of any ambitious EBA member under the new system?) whereas a decision that it is legal casts further doubt on the already shaky notion of independence following G 2/19 and G 3/19. Other arguments can also be found as to why either direction of decision is suspect.

      Faced with this "damned if you do, damned if you don't" decision, isn't there a non-negligible chance that the EBA decides that the only winning move in this game is not to play? Not a satisfactory conclusion, to be sure, as the legality of Art15a just remains in limbo indefinitely while the EPO forevermore acts as though it is indeed legal. But what further avenues are there for it to be challenged in that case...?

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    5. Whilst I was aware that your suggestion was only semi-serious, I am not sure that everyone grasped this point. Indeed, as you and Attentive point out, it is likely that the EBA will be sorely tempted to try to find an easy way out ... hence my explanation of why that option is not (or at least should not be) available.

      Of course, for justice to be seen to be done, ANY decision of the EBA on the new referral (even if that decision only relates to admissibility) should not be taken by any composition of the Enlarged Board that includes members having any involvement in the drafting and/or promulgation of Article 15a RPBA. But, apart from the President (whose involvement is a matter of public record), how does the public find out who those members are?

      Also, given the involvement of BOAC (which is a subsidiary body of the Administrative Council) in the drafting and promulgation of Article 15a RPBA, how can the public be confident that the other members of the EBA would not fear any (career) repercussions were they to decide that Article 15a RPBA conflicts with the EPC?

      This situation highlights the inadequacies of the EPC with regard to (protections for) the independence of the members of the Boards of Appeal, and hence the urgent need for structural reform.

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  7. From the OP calendar, the blog post of R&G, and the names of the authors of the blog post, I think it's this case:

    https://register.epo.org/application?number=EP04758381

    By letter of 11 Jan, R&G stated that "These oral proceedings are not suitable for VICO", so it seems both sides did not want VICO.

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  8. The likelihood that the EBA will declare the referral not admissible is high. However, all members of the BA having been involved in the setting up of Art 15a RPBA will in any case have to deport themselves. This should start with the president of the boards and some very active members wanting to succeed him. Could we come to the situation that all members deport themselves?

    It will also be interesting to see whether the members of BA 3.5.02 will be reappointed at the end of their term.

    In G 2/19 an interesting point has been raised. When discussing whether the BA can sit in Haar or must sit in Munich the Haar the EBA states: “The users of the services of the European Patent Organisation are entitled to rely on the fact that the bodies of the European Patent Office do not carry out their actions in arbitrary third locations.” See the last § of Point 2. of the reasons.

    How this is compatible with members of the deciding bodies of the EPO scattered all over Europe warrants an explanation. Can we here also expect a “dynamic interpretation” of its case law by the present members of the EBA?

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  9. Interesting question: will the referral lead to an ex officio decision of the President to suspend all proceedings that could be affected by the outcome?

    Such decisions are common when a referral affects a substantial number of pending proceedings ... as is no doubt the case in this instance. Indeed, common sense dictates that it would be preferable for a such a decision to be issued in this case. This is because it is surely far better to (slightly) delay proceedings than to risk having to conduct them again, especially given that decisions of the Boards of Appeal are supposed to be final. Also, it would avoid the risk of having to find fresh Boards of Appeal to re-hear the numerous cases that would be affected by any finding that Article 15a RPBA is unlawful (or unenforceable).

    Of course, if there is no ex officio decision to suspend proceedings, the lack of action will speak for itself...

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  10. The point is well made by Proof of the Pudding that Article 15a RPBA is not yet in force. However the note from the Boards is that they are already "adapting their practice" in advance. The law changes tomorrow but we'll anyway arrest you today. Reminds me in some respects of a "dynamic interpretation"... So I would say that compulsory VICO before the RPBA change is not legal but I wonder if someone else will need to have this point referred after 1 April when the rules are actually in force?

    I understand why the Boards are switching hearings to VICO without consent even before 1 April, as it's not practical to travel internationally. But when we are talking about final instance proceedings and 20 year monopoly rights surely legal certainty comes before the desire to prevent/clear a backlog.

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  11. A first Board of Appeal seems to start giving "carte blanche" to questionable notices of the president:

    https://www.epo.org/law-practice/case-law-appeals/recent/j200010eu1.html

    "Users and representatives cannot be expected to question, without any apparent reason, statements on the extension of time limits which are made in publications under Rule 134(4) EPC."

    How could the president know how long there will be an alleged "disclocation"? Was this an apparent reason to question the notice?

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  12. A further interesting point will be wether the hearing before the EBA, if there is any, will be a virtual or a real one.

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    1. The OP before the EBA in G 1/19 was in presence, but live video streaming had been arranged for the public.
      At least all the members of the EBA were present in the same room.

      There is no rule corresponding to Art 15a RPBA2020 for the EBA.
      In the absence of such a provision, any OP must be in presence.

      By the way, the same applies to OP in petitions for review.

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    2. The EBA has its own rules. As far as I know, the RPEBA do not include a provision equivalent to new Article 15a RPBA. There should therefore be no VICOs for the EBA.

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  13. I honestly do not see how the Board could decide that the President's decision on ViCos contravene the EPC. None of the articles of the EPC explicitly state that the OD or TBoA have to be at the same location as the parties of the proceedings. Nay-sayers rely on previous decisions on the interpretation of the EPC. However, these decisions were made in a completely different context than what we find ourselves right now. None of these decisions were made within the context of a pandemic and, in my opinion, the change in context makes all the difference.

    It is important to note that a factor that led to the decision of G 2/19 is the idea of whether a party is inconvenienced by the location of the oral proceedings. The Board considered that the parties were not significantly inconvenienced by attending the oral proceedings in Haar instead of Munich.

    It would, however, be incredibly inconvenient to hold any other oral proceeding than via ViCo right now. The only other option would be to push back all the oral proceedings where parties do not agree with holding the ViCo via video. The EPO tried this option but (according to an Examiner I talked to last September) about 90% of cases were being postponed because at least one party did not want to proceed via ViCo. This was simply unsustainable and was stopping the EPO from performing its function. Further, this approach was hurting the rights of the public that have a right to a speedy conclusion to the proceedings.

    It is, in my view, within the President's power and even duty under Art. 10(2)(a) EPC to implement the current measures during the COVID-19 pandemic. It is also, in my opinion, within the definition of the BoA's function under Art. 21(1) EPC that the BoA must have the ability to examine appeals. If the only way that the requirements of Art. 21(1) EPC can be fulfilled within the current circumstances is to hold oral proceedings via ViCo, then Art. 15a RPBA does not, in my opinion, contravene the EPC.

    What I would, however, welcome after the end of the pandemic is the requirement that both parties must agree to holding the oral proceedings via ViCo or giving one party the possibility of joining via ViCo while the other joins in person (if one person would prefer to attend via ViCo instead of in person). I foresee that the EPO will go back to this approach once the current situation normalizes.

    In short, the EPC does not explicitly prohibit ViCos and the decisions that people are relying on to interpret the EPC were taken in a different context and are therefore irrelevant in the present situation.

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    1. I do not think that you realise that your position is legally inconsistent.

      A "dynamic" interpretation of the EPC can certainly arise due to changes in underlying facts. This is well established in the case law of the EBA. More controversially, a "dynamic" interpretation can be based upon a new legislative intent (as per G3/19, though personally I think that this particular legal theory has no basis under the Vienna Convention and is therefore utter tosh).

      You appear to argue that the pandemic permits a "dynamic" interpretation based upon the conventional understanding of how such an interpretation works (ie changes in underlying facts). However, you do so in order to support new rules / decisions. This is despite the fact that a "dynamic" interpretation based upon a change of underlying facts does not in any way require (or rely upon) new rules or decisions. Your arguments therefore undercut any need for (and hence any possible legal basis for) such new rules or decisions.

      Your arguments also rely upon the rather questionable assumption that the correct (dynamic) interpretation of the EPC will PRECISELY align with the new rules / decision. All I can say is that you must have a time machine, as otherwise you could not possibly know which conclusions the Boards of Appeal will reach when dynamically interpreting the EPC in view of the pandemic. The considerations that you mention are certainly relevant ... but there are also many other considerations, at least some of which may well point to either subtly or starkly different interpretations.

      Moreover, your arguments suffer from the fatal flaw that a "dynamic" interpretation changes along with the underlying facts ... whereas Article 15a RPBA provides only for a FIXED interpretation of the EPC. In summary, whether you realise it or not, it seems that you agree that Article 15a RPBA is unlawful.

      As an aside, I would add that there is no possibility for a G3/19-style, "dynamic" interpretation of the EPC on this occasion. This is because, for there to be "legislative intent", there first needs to be a legislator (of the EPC) who expresses that intent.

      The President of the EPO is NEVER an EPC legislator. His decisions therefore cannot be cited as basis for supporting a new (divergent) interpretation of the EPC. Further, the AC is only ever a legislator for (specific parts of) the Convention, as opposed to the Implementing Regulations, for the purpose of bringing them "into line with an international treaty relating to patents or European Community legislation relating to patents". To my knowledge, there is no EU or international legislation that relates to the subject matter of new Article 15a RPBA. Hence, the AC is also NOT the EPC legislator on this occasion ... with the consequence that there is simply no "legislative intent" upon which a G3/19-style, "dynamic" interpretation might be based.

      Finally, enough with the "not explicitly excluded" nonsense! It is intellectually dishonest argument that puts the cart before the horse. There are plenty of interpretations (ranging from the potentially plausible to the wild and wacky) that are not EXPLICITLY excluded by the wording of the EPC. However, this does not make any of them the CORRECT interpretation of the EPC ... which is only ever (properly) established by following the rules of interpretation under the Vienna Convention.

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    2. Good points and thank you for providing your view on this Proof of the pudding. This is certainly a tricky situation but I do not 100% agree with your explanation/approach. It seems very contrived and would not allow the EPO to easily adapt to new technologies or situations.

      The intent of the legislators must be considered. However, the intent should be considered in the context of the situation in which the legislators were in. Otherwise, laws could not evolve to satisfy current requirements.

      For example (I know this is an extreme and simplified example), if legislators wrote in 1900 that a patent should be filed by post. Would it not make sense to add a Rule in 2001 that also allows the application to be filed online? I fear that your approach to the EPC would consider the new rule to be unlawful and require a change in legislation even though the initial article did not prohibit filing online (internet didn't exist back then so of course the legislators did not consider this option).

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    3. Anon: as I have explained, "dynamic" interpretation of the law is permitted when relevant underlying facts change. That is neither a contrived nor an inflexible situation. It would certainly cope with your extreme and simplified example.

      Personally, what I find to be more "contrived" are interpretations of the EPC recently put forward by the President of the EPO.

      The lack of a clear legal basis for a purported "general dislocation" is one particularly striking example:
      http://justpatentlaw.blogspot.com/2021/02/j-001020-covid-extension-lacks-clear.html

      Another example is G3/19, where every single one of the arguments put forward by the President were found to be either incorrect or unconvincing (though, as we all know, the EBA still contrived to find a way of saving the President's bacon).

      So forgive me if I am a little sceptical about interpretations of the EPC put forward by the executive branch of the EPO. With such poor recent form on their part, I believe that my scepticism is well justified.

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    4. OK, but relevant underlying facts have changed. We are in the middle of a pandemic. So, shouldn't a dynamic interpretation be allowable now because a fact has changed? I'm sorry, but I do not understand your argument on this point.

      There is nothing wrong with a healthy amount of skepticism but I feel like the ViCo issue is not the best hill to die on.

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    5. I do not think that you quite grasp which hill is being defended.

      In essence, the question underlying the issue of mandatory VICOs is as follows:
      Must there be a robust legal basis for any new interpretation of the EPC established in a new Rule passed by the AC, or a decision of the President of the EPO?

      Only if the answer to this question is "yes" can it be said that the EPO adheres to the rule of law.

      Can you now understand why I am unpersuaded by arguments that do not engage (in a substantive way) with the issue of PROPER legal basis for mandatory VICOs? And why I might find it more than a bit insulting when others imply that I am some kind of Luddite, or am making a fuss about nothing? Frankly, if there were no substance to my concerns, then we would not be discussing the fact that a Board of Appeal has decided to seek an opinion from the EBA on this issue.

      Believe it or not, I am strongly in favour of the use of VICOs. I just happen to believe that, in the absence of an adequate legal basis, they should not be forced upon those who wish instead to appear in person. The ends do not justify the means.

      Delete
  14. When I first read your comment, I first thought you are a fan of the president or you are quite naïve.

    At 1) Fan of the President as you resort to Art 10(2,a) on which he bases all his recent decisions. You have simply forgotten, as the president does, that Art 10(2,a) goes on a par with Art 10(2,b) which specifies that “unless this Convention provides otherwise, he [the president] shall prescribe which acts are to be performed at the European Patent Office in Munich and its branch at The Hague respectively”.
    Art 102(a+b) does not give him the power to completely dematerialise the EPO by allowing divisions of first instance to sit somewhere in Europe.
    I agree that the pandemic should allow means to come forward, but this should be within the bounds of the EPC interpreted in a reasonable way.

    At 2) when at the EPO it is question of a pilot, this is no more than a fig leave to give the impression that the decision is not yet final, but will be implemented whatever it takes. Not that it is a bad thing, but BEST also stated as a pilot…. All knew that it was there to stay, be it only to justify the vast investments in IT made at the time.
    Do you think the amendments of R 117 and R 118 allowing hearing of witnesses to be carry out by videoconference are just for the period of the pandemic?
    Art 15a RPBA2020 does also not say anything about a possible limitation in time.
    The new procedures are here to stay, and I wonder on which tangible facts you “foresee that the EPO will go back to this approach once the current situation normalizes”. The facts I have mentioned are hard facts and to not allow me to share your optimism.

    It might be correct that “the EPC does not explicitly prohibit ViCos” but should everything possible simply when it is not explicitly prohibited? I think not.

    After all we leave in a time of order and laws, and any deviation from the EPC should be duly justified by more than the will for power of the people at the helm of the EPO.

    If the measures were limited to the pandemic period, I could accept them at a pinch, but nothing like that is to be seen. You should realise that the aim of the president is to save money whatever it takes. By sending people in home office, and in their country of origin, he will save money on buildings, expatriation and education allowances to start with. This applies also to the members of the BA as for a large part they are submitted to the same staff regulations as all other staff members.

    Do you really want a fully dematerialised EPO? I do not. Even in G 2/19, the EBA held that “The users of the services of the European Patent Organisation are entitled to rely on the fact that the bodies of the European Patent Office do not carry out their actions in arbitrary third locations.” See the last § of Point 2. of the reasons.

    The pandemic does not authorise to take such liberties with not only the letter but also the spirit of the EPC.

    ReplyDelete
    Replies
    1. @Attentive Observer (It might be correct that “the EPC does not explicitly prohibit ViCos” but should everything possible simply when it is not explicitly prohibited? I think not.), do you know this joke?

      In England everything which is not forbidden is allowed.
      In Germany everything which is not allowed is forbidden.
      In France everything is allowed even if it is forbidden.
      In Russia everything is forbidden even if it is expressly allowed.
      In North Korea everything that is not forbidden is compulsory.

      Delete
  15. I think it is inappropriate to call other people naïve for stating their opinions. I'm pretty sure you would not talk to another person like that in real life if you were not hiding behind an anonymous pseudonym. So, be respectful. Don't be rude. This is a professional blog. Not the comments section underneath a youtube video.

    I just do not understand what you are basing the notion on that it is against the EPC to require oral proceedings to take place via ViCo during a pandemic. It is not in the EPC itself. So, what are you basing this on Attentive Observer? Where is the deviation?

    Also, what would you consider reasonable? Does everybody who works in patents not have a computer with a functioning webcam? Would it be reasonable to allow people to gather for in person oral proceedings right now? Would it be reasonable to allow the vast majority of oral proceedings to be pushed back for another year or two which would create long-standing uncertainty for the public (which would most certainly be against the spirit of the EPC)?

    Of course it is always easiest to criticize a solution then bringing your own to the table...

    Also, my belief that once the pandemic is over, the reasons why the current decision is commensurate disappear and then it would indeed be against the EPC to force both parties to attend oral proceedings via ViCo if they object. For example, the notion of convenience would sway to the other direction and the EPO would be able to carry on its function without the ViCo and therefore the strain on Art. 10 EPC and Art. 21 EPC would sway back to the other direction. However, this is speculation from my side just as your slippery slope fallacy and borderline conspiracy theory is based on pure speculation at your end. So, we will cross that bridge when we get there.

    Quick note concerning G 2/19. G 2/19 was decided in a different context and I think it is important to point out that the key word in the sentence you quoted is "arbitrary". Do you honestly believe that it is an arbitrary choice to hold oral proceedings via ViCo during a pandemic?

    ReplyDelete
    Replies
    1. You are the Jackie Weaver of the IPKat comment section.

      Delete
  16. The patronising and condescending tone of Attentive Observer will be familiar to anyone who has read comments under the same name appearing on other blogs. I agree with Anon of 11:55 that it is disrespectful to accuse commenters of being naive or "fans of the president" merely because they disagree.

    Anyway, there is a fundamental problem from my perspective with the logic of at least the part of Attentive's argument based on absences/omissions in the EPC. On the one hand it is argued that just because the EPC does not explicitly rule out ViCo, does not mean that they are permitted. On the other hand it is argued that "if the measures were limited to the pandemic period, I could accept them at a pinch". But the EPC is also completely silent on any sort of emergency/pandemic measures. So how does Attentive justify that emergency measures (which are not mentioned in the EPC), potentially including ViCo, are permitted, but ViCo as a non-emergency measure (which is not mentioned in the EPC either) is definitely not permitted? The logic is inconsistent and incoherent.

    Those who argue that ViCo is not permitted *whatsoever*, even as an emergency measure, at least have the benefit of internal consistency on their side, although I respectfully disagree with that argument.

    Taken to its logical extent, an argument that anything not expressly mentioned in the EPC is forbidden would paralyse the operations of the EPO. After all, where does the EPC tell us that "comprising" is an open-ended term? Where does it provide basis for novelty of selection inventions? Where does it provide basis for the problem-solution approach? None of these are expressly mentioned either. Should all of these be regarded as illegal too? Of course not. So why are the provisions of the EPC regarding oral proceedings a special case?

    ReplyDelete
    Replies
    1. Advocate: you are missing a vital piece of the puzzle. See the above discussion regarding "dynamic" interpretations of the EPC based upon changes in underlying facts. If you have any doubts regarding how this works, then I would suggest you read the section in G2/12 (and G2/13) that discusses the methods that can be used to interpret the EPC.

      Delete
    2. Pudding, I enjoy your contributions more than those of Advocatus diaboli. To begin by disparaging another commentator as "patronising and condescending" is not a good approach. For a long time, I have suspected that there is an EPO management desk that monitors and, when thought necessary, contributes to these threads, under a variety of pseudonyms.

      Delete
  17. Dear Anonymous, here is part 1 of my reply.

    Please do not confuse freedom of expression and reasoned criticism of some views expressed. It was never my intention to offend anybody, but if it was the case please accept my apologies.
    It does not however alter my position and if some people consider it condescending, so be it.

    I am anything but opposed to using modern means of communication in a pandemic period, but any use of such means cannot be the decision of a single person, however high this person is in the hierarchy of the EPO.

    To take an idea from the French President, nobody wants to be the Amish of somebody else. In this respect, trying to bring matters forward in a period of pandemic is not something I am opposing. But even in a period of pandemic, some rules have to be respected. The first one is that the wishes of the parties have to be respected.

    Even in the case of ViCos during the pandemic the decision taken by the president is in essence arbitrary as there has been no consultation whatsoever. At least the chair of the BA offered a mockery of consultation.

    In lots of judicial or quasi-judicial systems, the use of ViCos has been introduced. But for this a legal basis was created by the bodies controlling the executive. Here it is a one-man decision.

    If the president of the EPO had proposed OP in form of ViCos for the time of the pandemic, I would not have had anything to say, but with the above proviso. I am however opposed to the fact that this form of OP should become the default setting in the future.

    Where do you find tangible reasons for your “belief that once the pandemic is over, the reasons why the current decision is commensurate disappear and then it would indeed be against the EPC to force both parties to attend oral proceedings via ViCo if they object”? I can see none and beside the fact that there is a “pilot” in opposition, all the measures taken are clearly not bound to a given time limit. They are there to stay.

    When Advocatus diabolic mentions that the EPC does not provide basis for the problem-solution approach, that "comprising" is an open-ended term, or for novelty of selection inventions, I cannot but wholeheartedly agree. All those concepts are however the result of the development of the case law of the boards over many years. It would not come to my mind to query any of them. They relate all relate to substantive patent law.

    ReplyDelete
  18. Dear Anonymous, here is part 2 of my reply.

    The decision of holding OP in form of ViCos as default is a decision on procedural matters. This decision is based on a very personal interpretation of the EPC by a single person. And I am reacting to this pretence of the actual head of the EPO.

    What is even worse is that the management of the BA is encouraging the president in its endeavours. There is also no time limit foreseen in the new Art 15a RPBA2020.

    I cannot see a “slippery slope fallacy and borderline conspiracy theory [is] based on pure speculation”. It is simply observing how the EPO has been run for the last ten years and since 2018 especially.

    If you do not believe me, fair enough, but you should then in any case consult publications from the staff representation about what is considered by the person sitting on the 10th floor to become the “New Normal”. All what I said about the wish of the head of the EPO is to be found there. Development of home office work, saving on buildings and saving on expenses in general, especially on salaries. As I explained, sending members of first instance to their home countries is an enormous source of savings for the management of the EPO.

    Just an example, the EPO already wanted to sell part of its latest building as there was, according to its head, too much office space, and the money coming from this sale could flow to member states. No wonder the AC agreed. The Munich city council put a halt to this move and vetoed it as not corresponding to the contract it has with the EPO. Now another building should be sold. The former head of the EPO started playing the tail wagging the dog, the present one continues as the AC has given up its duties.

    I would also like to remind you what the EBA said in G 2/19: “The users of the services of the European Patent Organisation are entitled to rely on the fact that the bodies of the European Patent Office do not carry out their actions in arbitrary third locations.” See the last § of Point 2. of the reasons”. Any attempt to amend the procedure in such a way does not even correspond to the interpretation of the EPC by the EBA. And yet the president and the management of the BA want such a move….

    Those are real hard facts and it makes me sad to see how the EPO is going into the wall. That law has to adapt to the changes of society is not at stake, but not in such an imbalanced manner by the mere wish of some individuals.

    ReplyDelete
  19. For those guys doing so much drama on ViCos: welcome to the FUTURE!

    There are a lot of involved stakeholders and a lot of interest on this question, how can you state this is a one person decision? Are you so well-informed to be able to make this statement?.

    It is undeniable that ViCos has a lot of pros (better access to public and clients, environmental friendly, cost savings that can be re-routed to innovation, multimedia integration...). Of course there are cons (big ego Perry Mason attorneys losing body language and dramatic skills that would win a case that actually should, and really is, decided on technical matters). For many people, however, pros really outweighs for a majority of cases. Anyhow, if the Board/Division thinks ViCo is not appropriate they can decide to hold the proceedings in person.

    Luckily, the pandemics are acting as a catalysator that makes possible many things that would otherwise be quite difficult to implement by some people uncapable of dealing with change. Quite hard for me to understand why people involved in patents are so closed-minded regarding change and innovation...but lot of people is quite reasonable and the system can move forward.

    On the referral, quite hard to understand how deciding that an oral proceeding is to be held per video always offends the right to be heard. This would be only depending on the case. The Board should have simple looked at the parties arguments and decide for the specific case whether ViCo is not appropriate. It looks more like as an internal political torpedo than a judicial decision.

    ReplyDelete
  20. It is a topic which reveals surprisingly (incomprehensibly?) strong emotions indeed from readers, even to the extent of baselessly accusing others of being in the pay of the EPO management for not sharing their opinion. And like you I find it incomprehensible that so many in the profession are so against technological progress. I wonder what their clients would think...! I know for a fact that mine have welcomed the move to video proceedings.

    ReplyDelete
  21. Nothing against technological progress, but in a way that it has a legal basis. If parties agreed on OP in form of ViCos the legal means can and have been provided. Even during a pandemic the parties have to agree or not.

    What is most than questionable is the obligation to hold OP by ViCo even after the end of the pandemic. It is left to the discretion of the deciding body if an OP is held on the premises of the EPO. That is not respecting the right to be heard which also goes down to this level. If you read the various decisions of the president and the notices of the EPO, you will realise that there are very few exceptions allowed and in reality are quasi inexistent. Forbidding it in all circumstances would have been a bit too much so a fig leaf has been devised.

    What is not acceptable at all is the fact that the deciding body may be scattered all over Europe. Even the EBA found that the bodies of the European Patent Office should not carry out their actions in arbitrary third locations.

    By the way, it is the British profession which is the most in favour of ViCos, and the reasons for it are pretty obvious. The CIPA paper is at odds with the position of epi representing the profession before the EPO. I will not dwell on the mercantile side of CIPA’s position which has been clearly explained in various blogs.

    Where is it said in the EPC that the parties themselves have to be present at OP? What matters is that a qualified representative is present. A postponement can only be required when a person indispensable, like the representative or witness is not in a position to assist. That for instance, a US patent attorney cannot be present is irrelevant. A large part of the expenses and of the carbon footprint find its origin in the travel of persons whose presence at an OP is not absolutely necessary and not required by the EPC.

    When the EPO relies on the professionalism a witness heard by ViCo not to watch the OP by ViCo before he is officially heard is also showing a hard to believe naivety. It has no means to check. When the witness is heard on the premises he waits outside the room before he is heard. How can one trust such a procedure? Keep in mind that hearing a witness at the EPO is not comparable to the hearing before a UK court.

    Exceptional circumstances should not be the door opener to measures which are against the spirit and the letter of the EPC, but this is what the present head of the office wants.

    What some people call an internal political torpedo is simply an attempt by some reasonable members of the BA to force the management of the BA to reflect on the legality of the measures proposed. Believe me, they are not isolated, and it will be interesting to see whether they will be reappointed or not.

    Among all this, it will be interesting to see what the Federal Constitutional Court will have to say about the independence of the boards of appeal of the EPO.

    ReplyDelete
  22. Those against VICO, which is used by the EPO since 1998 and is allowed under the EPC, are probably European Patent Attorneys working in Munich or The Hague, who fear losing their golden goose, namely in-person hearings, which they can offer at a lower price since they must not take a train and/or a plane.
    In 2021, VICOs are used by most courts and are certainly the future, also in consideration of health and environment benefits.

    ReplyDelete
    Replies
    1. I can say with absolute certainty that those questioning the legal basis for mandatory VICOs are not just patent attorneys based in Munich. Why would you make that assumption? Perhaps you might want to reflect upon why it is that you appear to discount the possibility of others acting in a way that is not motivated by (financial) self-interest.

      Delete
    2. @Proof of the pudding
      I never wrote or supposed that those questioning the legal basis for mandatory VICOs are just patent attorneys based in Munich.
      However, from my experience I can say (without absolute certainty) that EPAs based in Munich are usually against VICOs, while EPAs working far from Munich or the Hague are pro VICOs.

      Delete
    3. Robot: it seems that self-reflection is not your strong point. Neither is reading what you actually wrote.

      Delete
  23. Who can comment, intelligently, on the issue raised by Attentive Observer how, under ViCo, witnesses can be heard fairly, how justice can be done, between the Parties?

    I mean, up to now, the use of recording devices in Oral Proceedings has been strictly prohibited. Witnesses don't know until they give evidence, what the previous witnesses said, when interviewed by the Legal Member.

    But under ViCo conditions, everything is recorded in real time. Every witness will watch attentively, throughout the interviewing of all the other witnesses. No longer will there be any discrepancies or contradictions between witnesses. Under ViCo, for sure they will all be singing completely in tune, all from the same songbook.

    So will the EPO case managers make an exception, and require a non-ViCo Hearing, whenever it comes to witness evidence? Or does none of this matter? Am I worrying over nothing?

    ReplyDelete
    Replies
    1. The role of witnesses in patent validity proceedings tends to zero, especially compared to criminal court proceedings, where instead Vicos and recordings are used already for decades.
      Witnesses will always be able to lie (as they usually do at the EPO), with or without ViCo.

      Delete
  24. It is manifest that for the British profession OP by ViCo are a wonderful tool for taking revenge over colleagues sitting in Munich or having opened branches there. In this respect the CIPA paper on ViCo sums it up very well. The pretext of having the “opportunity to shape the future of the patent system in the EPC Contracting States”, is no more than a fig leave to hide mercantile interests. After having lost the “opportunity to shape the future of the patent system in the UPC Contracting States”, the move to OP by ViCo could only be welcomed from the other side of the Channel.

    When looking at other blogs, one realises that beside very few people, the most prominent being “Patent Robot”, even if he is not a member of CIPA, agree that OP have to be exclusively in form of ViCos. They all want the choice to be given to the parties.

    http://patentblog.kluweriplaw.com/2020/12/02/response-to-epo-consultation-dont-impose-oral-proceedings-by-videoconference/

    http://patentblog.kluweriplaw.com/2020/12/10/vico-for-oral-proceedings-at-the-epo-cipas-view/

    Up to now none of those who are absolutely in favour mandatory OP in form of ViCo took the bother to reply correctly to the questions raised:
    - what about the choice of parties to have an OP in presence rather than as ViCo; this is to me also part of the right to be heard;
    - do other people than the representative have to be present? In lots of procedures before civil courts, the parties are not present, just their representatives;
    - obvious possibility of witnesses cheating, where the EPO itself owes up that it cannot check. It might be forbidden to make sound or video recordings of OP as ViCos, but here again the EPO cannot check and impose the absence of recordings;
    - the dissemination of members of the deciding bodies all over Europe; this is to me the most problematic aspect, and that this should not happened is one of the worries of all those who want decent proceedings; by far not all members of the BA agree with the position taken by the BA management, even if they can accept OP by ViCo.

    It is certainly correct that in other court systems the possibility of hearings by ViCo has been given, but this was under control of the legislative. Such a control is absent at the EPO.

    Would the AC carry out its duties, and the tail not wagging the dog, we would not be in the present situation. Calling upon Art 10(2,a) and ignoring at the same time Art 10(2,b) is simply laughable. And the management of the BA encourages such an attitude. After G 3/19, this is the most worrisome.

    But what would one not do for the big buck? What a world we live in!

    ReplyDelete
    Replies
    1. @Enough is enough!
      "It is manifest that for the British profession OP by ViCo are a wonderful tool for taking revenge over colleagues sitting in Munich or having opened branches there."
      Maybe it is not a "revenge" but the removal of an undue advantage of Munich colleagues compared to all other European colleagues, e.g. those working in Reykjavik, Lisbon or Ankara.

      Up to now none of those who are absolutely in favour mandatory OP in form of ViCo took the bother to reply correctly to the questions raised:
      - what about the choice of parties to have an OP in presence rather than as ViCo; this is to me also part of the right to be heard;

      I can also say: what about the choice of parties to have an OP by Vico instead of in-person? Who will decide the form of OPs? Those who work in Munich? At any rate ViCo is fully compliant to Art. 113 EPC (otherwise the EPO would not use ViCo since 1998).

      - do other people than the representative have to be present? In lots of procedures before civil courts, the parties are not present, just their representatives;
      With ViCos not only representatives, but also trainees, inventors, applicants and the public can be present, which is a huge advantage for the profession, their clients, third parties and mother Earth

      - obvious possibility of witnesses cheating, where the EPO itself owes up that it cannot check. It might be forbidden to make sound or video recordings of OP as ViCos, but here again the EPO cannot check and impose the absence of recordings;
      The role of witnesses tends to zero at the EPO and they will continue lying the same as now with Vico. How many times has Rule 120(2) EPC applied?

      - the dissemination of members of the deciding bodies all over Europe; this is to me the most problematic aspect, and that this should not happened is one of the worries of all those who want decent proceedings; by far not all members of the BA agree with the position taken by the BA management, even if they can accept OP by ViCo.
      I do not see the "dissemination" as a problem, since the members can always communicate with each other in real time (e.g. on another ViCo channel). At any rate ViCo can be used also with all EPO members in one room and the parties on Vico.

      It is certainly correct that in other court systems the possibility of hearings by ViCo has been given, but this was under control of the legislative. Such a control is absent at the EPO.
      Why is control absent at the EPO? The EPO has issued detailed rules and guidelines on how to use ViCo, which rules are fully compliant with the EPC.

      Would the AC carry out its duties, and the tail not wagging the dog, we would not be in the present situation. Calling upon Art 10(2,a) and ignoring at the same time Art 10(2,b) is simply laughable. And the management of the BA encourages such an attitude. After G 3/19, this is the most worrisome.
      I fully agree with you that we have issues in this respect (G 2301/15, G 2302/15, G 2301/16 and the future 4/19 are more worrying than G 3/19) but ViCo is not an issue: actually it is a wonderful tool to save money, time and pollution.

      Delete
  25. Just yesterday I stumbled on something interesting in the examination guidelines (in Part E – Chapter III-25):

    Oral proceedings by videoconference are permitted only in the case of ex parte proceedings before an examining division. They are not allowed for opposition or PCT Chapter II cases or for the taking of oral evidence.

    So, apart from the question of the legality of mandatory videocons under the EPC, the EPO apparently is able to make 180 degree turns without bothering to update its own guidelines...
    As an advocatus diaboli I would say: The guidelines have not been updated so the examiners can be more easily fired for not following the guidelines... ;-)

    ReplyDelete
  26. Just have a look at the preview of the updated Guidelines to enter into force on 01.03.2021.

    https://www.epo.org/law-practice/legal-texts/guidelines/guidelines-preview.html

    ReplyDelete
  27. The minutes of the oral proceedings are now available, https://register.epo.org/application?documentId=E5U2QNVG8862804&number=EP04758381&lng=en&npl=false

    ReplyDelete
  28. An interesting document about the legality of virtual oral proceedings.

    https://www.meissnerbolte.de/de/news/legality-of-virtual-oral-proceedings-under-art-116-epc/

    Please do not come with the argument that the attorney firm is sitting in Munich, but make the effort to reply reasonably and in substance to the arguments brought forward in this paper.

    ReplyDelete

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