EPO user survey: ViCo oral proceedings continue (to divide opinion)

Following the decision of the EBA in G 1/21 on the legality of mandatory ViCo oral proceedings, the EPO has continued with ViCo proceedings before the Boards of Appeal. The EPO has also now released a report of the user survey of the opposition division (OD) ViCo pilot program. As with the EBA decision in G 1/21, both supporters and critics of ViCo oral proceedings will find evidence in the report to bolster their position. Nonetheless, the user survey results are broadly positive, even if they are not quite the unequivocally glowing endorsement of ViCo that the EPO, with its usual positivity, has concluded. 

ViCo oral proceedings , G1/12 and the OD pilot program

Are in-person proceedings the gold standard?
In order to avoid a large back-log of cases during the COVID-19 pandemic, the EPO began holding Boards of Appeal oral proceedings by video conference (ViCo). The EPO also began a pilot program of ViCo oral proceedings before the Opposition Division (OD). It was not long before the EPO moved to mandatory ViCo oral proceeding before both the Boards of Appeal and OD. The OD pilot programme has now been extended to at least 31 May 2022. 

The introduction of mandatory ViCo oral proceedings sparked a new referral to the EBA (G 1/21). The referral asked whether mandatory ViCo proceedings were compatible with the right to oral proceedings as enshrined in Article 116(1) EPC. The final order of the EBA in G1/21 found that mandatory ViCo proceedings before the Boards of Appeal were permitted during a time of "general emergency impairing the parties' possibility to attend in-person oral proceedings". The decision thus did not provide a decision on mandatory oral proceedings in first instance (such as before the OD), or after the state of general emergency had ended. Nonetheless, the decision included reasoning on how in-person proceedings should be preferred, and went so far to say that in-person proceedings were the gold-standard (IPKat). 

The EBA decision in G 1/21 was presented in such a way that both sides of the debate on ViCo were able to claim a victory of sorts. Proponents of ViCo were able to point to a clear order by the EBA that ViCo proceedings were permitted, at least during the pandemic. Critics of ViCo seized on the EBA language that in-person proceedings should be preferred in the absence of a general emergency and in view of the current limitations in ViCo technology. Notably, whilst the EBA decision in G 1/21 did not explicitly address the legality of mandatory ViCo proceedings in Opposition, the advantages and disadvantages of ViCo highlighted by the EBA appear as applicable to the OD as they do to the Boards of Appeal. 

Results of the user survey on OD ViCo the pilot program 

The EPO conducted a User Survey on the use of ViCo in opposition proceedings in September 2021. The results of this survey have now been published, along with a report summarising the results. 

The report shows that there was little difference in the outcome of ViCo proceedings versus in-person proceedings, with roughly the same proportions of patents being upheld and revoked in 2021 as in the year immediately preceding the pandemic. Interestingly, the majority of respondents to the user survey were from the UK (38%) potentially reflecting CIPA's high level of engagement with the process). Germany came in as a close second (30%). The vast majority of respondents were professional representatives, roughly half of which worked in-house. 77% of respondents had experienced OD ViCo oral proceedings. 

So what were users' experiences of ViCo opposition proceedings? The wording in the EPO report presents the result as very much pro-ViCo and reports that users' views of ViCo were "overwhelmingly positive, with two thirds rating their experience as 'good' or 'very good'". Critics of ViCo, however, may point out to the corresponding 18% of respondents who found the experience to be "poor" or "very poor". 

The report also points to the roughly two thirds of respondents who found the perceived ability to make one's case or to follow the argument of another party as "good" or "very good". Again, put another way, this corresponds to one third of respondents having found the perceived ability to make one's case to be "average", "poor" or "very poor". 

When asked to identify advantages of ViCo, the most commonly cited advantages by users were reduced travel time (73% of respondents), reduced costs (54% of respondents) and reduced environmental impact (41% of respondents). The main disadvantages were identified as difficulty in picking up non-verbal communication (61% of respondents), technical issues (43% of respondents) and it being more difficult to present oral arguments (26% of respondents). These pros and cons broadly correspond to those highlighted by the EBA in G 1/21. Indeed, the user survey is broadly in line with the EBA finding that the use of ViCo is sub-optimal but not to such a degree that a party's right to be heard or right to fair proceedings is seriously impaired

A key advantage of ViCo is of course the the opportunity it offers for clients, trainees and members of the public to attend proceedings, and the report notes a 20 fold increase in public participation in Opposition oral proceedings since hearings moved to ViCo. 

Final thoughts

Even the most ardent supporters of ViCo would probably admit that the EPO report glosses over some of the legitimate criticisms of ViCo. The direct quotes of user feedback  provided in the report are all positive and this Kat finds it hard to believe that there was no negative feedback that could have been quoted for balance. Nonetheless, however much it may be argued that the EPO report sugar-coated the data, it is undeniable that the majority of users responding to the survey were in favour of ViCo. Particularly, it is clear from the report that there is a good deal of support for the continuation of ViCo proceedings even after the state of general emergency impairing parties ability to attend in-person proceedings has passed. 

It would have been interesting to see the breakdown of responses to the survey by country. Anecdotally, representatives of German patent firms have been particularly vociferous in their objection to ViCo. A cynic might say that this is unsurprising, given that a move to ViCo removes some of the competitive advantage these firms have for being located within striking distance of the EPO. On the flip side, UK professional representatives (including CIPA itself) have come out broadly in favour of ViCo. Was the positive feedback on ViCo driven by the majority UK respondents? 

Interestingly, in its conclusion, the report took pains to highlight that the reasoning in G 1/21 on the primacy of in-person proceedings only explicitly applies to Boards of Appeal proceedings and not to opposition proceedings. The report also noted that the reasons for which the EBA found that in-person proceedings should be the default, namely the current limitations of ViCo technology, may be overcome both by improvements in technology as well as the increased familiarity of parties with the technology. Here we see how the EPO might seek to overcome the EBA's clear direction that in-person proceedings should be the default post-pandemic, e.g. by citing an improvement in the technology. Nonetheless, as Germany begins suffering a fourth wave of coronavirus infections, we can be confident that ViCo proceedings are here to stay for the immediate future. The results of the user survey at least provide comfort that the majority of users haven't found ViCo to be a barrier to justice. 

Further reading

18 January 2021: The inexorable rise of EPO oral proceedings by video conference

9 Feb 2021: The legality of Board of Appeal oral proceedings by video conference has been referred to the EBA

16 March 2021: Board of Appeal in T1807/15 continues with ViCo oral proceedings referral

29 March 2021: Chairman and Enlarged Board criticised for lack of impartiality in ViCo oral proceedings referral (G1/21)

21 May 2021: EPO responds to accusations of perceived bias in G1/21 (ViCo oral proceedings)

28 May 2021: Oral proceedings in G1/21 (ViCo) rescheduled due to procedural technicality

6 July 2021: ViCo oral proceedings on the legality of ViCo oral proceedings - G1/21, The Sequel

17 July 2021: EBA dodges the question in G1/21 (ViCo oral proceedings)

3 Sep 2021: Are parties still impaired from attending in-person proceedings? G1/21 (ViCo) applied by the Boards of Appeal (T 1197/18)

1 Nov 2021: EBA decision in G1/21 (ViCo): "In-person proceedings should be the default"

EPO user survey: ViCo oral proceedings continue (to divide opinion) EPO user survey: ViCo oral proceedings continue (to divide opinion) Reviewed by Rose Hughes on Tuesday, December 07, 2021 Rating: 5

1 comment:

  1. Question: just because the ruling G 1/21 only addresses oral proceedings before the Boards of Appeal, is the EPO entitled to ignore an interpretation of Article 116 EPC (regarding the role of the parties' consent) that, on the face of it, applies equally to oral proceedings before the first instance departments of the EPO?

    It is particularly notable that the EPO's report does not provide any valid (ie properly substantiated) reasoning for turning a blind eye to the role of the parties' consent. This is perhaps not surprising, as even the President's own amicus brief for G 1/21 took the position that the EBA's interpretation of Article 116 EPC would be relevant to both first and second instance oral proceedings.

    This then poses another question: how many EBA and/or Board of Appeal rulings will it take to open the eyes of the EPO President to the fact that the EPC affords interpretative supremacy to the Boards of Appeal (and NOT to him)?


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