The EPO has announced the EPO President's decision to make ViCo the default format for all opposition and examining oral proceedings from 1 January 2023. The President's Decision precedes the end of the ViCo pilot program at the end of this year and puts the use of ViCo at first instance on a permanent footing.
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According to the President's Decision, oral proceedings before the Examining or Opposition Divisions should, from January, be held by ViCo by default. Oral proceedings may still be held in-person if "there are serious reasons against holding the oral proceedings by videoconference". The decision does not elaborate as to what these serious reasons may constitute.
The latest EPO announcement on the use of ViCo in opposition oral proceedings comes days after the release of the report of the latest user survey on the ViCo oral proceedings pilot program (IPKat). In classic EPO fashion, the user survey report was unremittingly positive about users' experiences of ViCo. Indeed, the survey did reveal user attitudes to ViCo as being generally positive. Nonetheless, the EPO report glossed over the small but significant proportion of users who rated their experience of ViCo as "poor" or "very poor". Now that ViCo for opposition and examining division oral proceedings are here to stay, we can but hope that behind the scenes the EPO is seeking to address the issues with ViCo that some users continue to experience.
The decision of the EPO to make ViCo the default in opposition also comes against the backdrop of the EBA decision in G1/21 earlier this year (IPKat). G1/21 considered the legal basis for mandatory ViCo in appeal hearings. Critically however, the EBA did not consider it appropriate in G1/21 to comment on the use of ViCo in opposition and examining oral proceedings. G1/21 was instead restricted to considering the legal justification for mandatory ViCo in appeal oral proceedings. However, the points made by the EBA in G1/21 on the general suitability (or lack of) of ViCo in oral proceedings may be applied just as well to opposition oral proceedings as appeal hearings.
In G1/21, the EBA found that, whilst the use of ViCo in oral proceedings does not contravene a user's right to be heard, it is nonetheless sub-optimal. As such, according to the EBA, the use of mandatory ViCo in appeal hearings was only justified in view of the state of general emergency occasioned by the COVID-19 pandemic. The EBA went so far as to say that in-person proceedings remained the "gold standard" and should be the default absent a state of general emergency.
The Boards of Appeal have not yet had to fully put the EBA's reasoning against ViCo into practice. So far, Boards of Appeal have avoided the issue by continuing to find that a state of general emergency from the COVID-19 pandemic is still in place, and that ViCo is therefore justified under G1/21 (IPKat).
With the EPO President pulling in one direction, and the EBA in another, the EPO once again appears to be tying itself in legal knots.
Further reading
- The inexorable rise of EPO oral proceedings by video conference (18 Jan 2021)
- The legality of Board of Appeal oral proceedings by video conference has been referred to the EBA (9 Feb 2021)
- Board of Appeal in T1807/15 continues with ViCo oral proceedings referral (16 March 2021)
- Chairman and Enlarged Board criticised for lack of impartiality in ViCo oral proceedings referral (G1/21) (29 March 2021)
- EPO responds to accusations of perceived bias in G1/21 (ViCo oral proceedings) (21 May 2021)
- Oral proceedings in G1/21 (ViCo) rescheduled due to procedural technicality (28 May 2021)
- ViCo oral proceedings on the legality of ViCo oral proceedings - G1/21, The Sequel (6 July 2021)
- EBA dodges the question in G1/21 (ViCo oral proceedings) (17 July 2021)
- Are parties still impaired from attending in-person proceedings? G1/21 (ViCo) applied by the Boards of Appeal (T 1197/18) (3 Sep 2021)
- EBA decision in G1/21 (ViCo): "In-person proceedings should be the default" (1 Nov 2021)
- EPO user survey: ViCo oral proceedings continue (to divide opinion) (7 Dec 2021)
- Applying G1/21 (ViCo oral proceedings): The real test is yet to come (23 Feb 2022)
- ViCo oral proceedings: Waiting for the end of the general emergency (T 2791/19)
- Latest EPO user survey on ViCo oral proceedings (18 Nov 2022)
Reviewed by Rose Hughes
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Thursday, November 24, 2022
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Following the “results” of the survey, it is without surprise that the president of the EPO has decided on 22.11.2022, that all OP before examining divisions, opposition divisions, the Legal Division and the Receiving Section are to be held as by videoconference.
ReplyDeleteMandatory OP by ViCo in first instance have actually been introduced in order to save on office space, so that some buildings can be sold and more money ends in the “cooperation” budget.
The Covid pandemic was a good pretext to push such a change trough and ignore the EPC and its Rules of Implementation.
That the EPO adapts its procedures to new possibilities offered by modern telecommunication means is not at stake. This should however not be imposed on the users.
The users have to be given the choice. If all parties agree on OP by ViCo then the OP should be held by ViCo. If one party prefers OP in-person, the OP should be held in a mixed mode.
In the meantime we have had G 1/21 which at least considers that OP in person are the “gold-standard”. Why in-person OP are the gold standard before the BA and not before a first instance is a mystery. Art 116, R 115 and 116 do not distinguish between first instance and BA. What is then the legal basis in the EPC for such a distinction?
During the OP of G 1/21, the representatives of the president did not hesitate to claim that the EPC can be amended by secondary legislation. It seems that they have forgotten Art 172 and Art 164.
When looking at the EPC and its Rules of implementation, I fail to find a legal basis for OP by ViCo. OP by ViCo have been decided by order of mufti and the BA were forced to adopt them by amending the RPBA20. Now they are mandatory for good at least in first instance.
A mere reference to R 117 and 118 cannot be considered as a legal basis for mandatory OP by ViCo. R 117 merely provides that the decision on taking evidence specify whether it will be conducted by videoconference. R 118(2,a) merely provides that the summons to take evidence specify whether it will be conducted by videoconference. This is a bit short of a proper legal basis.
The lack of legal basis in the EPC of OP by ViCo is not the only problem. There are other parts of the decision lacking legal basis.
Art 2(1) of the decision of 22.11.2022 provides that “The members of an examining or opposition division may connect to the oral proceedings by videoconference from different locations”. I fail to find in the EPC and its Rules of implementation the legal basis allowing a deciding body, be it a first instance division or a BA, not to sit together when deciding the fate of an application/opposition.
I very much doubt that Art 125 will help in this matter. In Germany parties can be connected by video, but the deciding body has to sit in the same room. I doubt that this would be different in all other member states of the EPO.
As far as taking evidence is concerned, R 117 and 118 open the door to cheating. There is no guarantee that the witness/expert to be heard is not listening to the OP as public, or sitting next to a member of the public listening to the OP. I would not trust a simple declaration of the witness/expert that he/she is not listening in the OP. With in-person OP at least, guarantee was given that the witness would not listen in the OP.
Such a guarantee could only be given if the witness/expert would be obliged to give its statement in the premises of a court in one of the member states or in the premises of the EPO. Then, there is no problem with a video connection. In the absence of this guarantee, hearing of witnesses/experts cannot be given any evidential value.
In spite of the usual verbose comments in the communiqué of 22.11.2022, the service given to the users of system has been degrading in the latest years. The EPO has always decided amendments to the procedure which could help it and disregarded the needs or wishes of the users.
It is really noticeable how IPKat was inundated with comments finding the EPO's attitude in matters of adaptation of the description.
DeleteWhen it comes to mandatory OP by ViCo, the silence on IPKat is eloquent and astounding.
Does it have something to do with the official position of CIPA during the discussion on G 1/21?
@Anon of 07:41:
DeleteNo need to rely on conspiracy theories about CIPA somehow directing the minds of every IPKat reader.
This UK attorney disagrees with CIPA's official position, but recognises that even if the EPO's new mandatory ViCo policy is ultra vires, there seems to be little that any of us can do about it. The points that need to be made about its dubious legality are made well in the blogpost and in the first comment above.
In contrast, the issue of adapting the description is a debate that is very much alive and one where we have competing lines of reasoning from the Boards of Appeal to analyse and deploy in our own cases with a view to (maybe) helping to shape the law. Much harder to see how to do that in matters of ViCo at first instance, where there's no route for the profession to discuss concerns properly with the President or a supine AC, and where the cost and impracticality of pursuing an Appeal on a point concerning the mode of oral proceedings at first instance makes me doubtful that this issue will reach the Boards - and even if it does, it will take years to get there and any unfavourable decision will likely be ignored by the management anyway.
Agreed with regards to Art 172 and 164, and the general opinion that the president is overstepping his bounds.
DeleteBut I find it interesting that your argument relies on there being no legal basis for OP by vico or for allowing members of a deciding body to sit separately as being points against allowing for OP by vico.
A lack of legal basis in the EPC does not mean something is not allowed but instead merely means you cannot insist that something is allowed, like we couldn't insist on vico 5 years ago. E.g., nowhere in the EPC does it say you can have a laptop, paper, notes or pen when attending an in-person OP, yet this is not prohibited and you'd be shocked if it was.
I'm not sure why there is this opposition to vico seeing as there is nothing a competent EPA can do in-person but cannot do by vico, vico saves money for applicants and vico greatly reduces the environmental impact previously associated with OPs due to the travel burden.
I have to wonder if the opposition mainly comes from Munich/The Hague-based EPAs who loved the advantage of being able to walk down the road to have an OP while those of us based elsewhere had to travel for hours; or from EPAs who love going on a firm-funded jolly to Munich with 1st class all the way.
Dear anonymous of 25.11.2022 - 12:13:00 GMT
DeleteYou come back to the old discussion of what is not forbidden is automatically allowed or what is not expressly allowed is forbidden. I think that following a middle way is much better.
When looking at G 1/21, there is a kind of dynamic interpretation of Art 113 and Art 116 which allowed the EBA to say that OP by ViCo were not prohibited by the EPC. This is to me the proof that there is no legal basis in the EPC for OP by ViCo. Even Art 31 and 32 VCLT would not allow such a wide ranging interpretation.
At least in G 3/19 the dynamic interpretation was based on the contradiction of R 28(2), Art 53(b) and G 2/12 and G 2/13. In G 1/21 the dynamic interpretation had for only effect to push through OP by ViCo as the head of the EPO wanted it.
That the EPO should adopt new ways of communication is not disputed. That in case of the pandemic a ViCo is a good way of avoiding infections and a backlog is neither disputed.
Having a laptop, paper, notes or pen when attending an in-person OP is beside the point and not convincing at all, unless you want to join the Amish. For this token we could go back to Morse signalling as way of communication. Let’s stay reasonable.
It is the mandatory character of OP by ViCo which is at stake here. Neither should the office nor another party impose on a party the form of OP. The choice should be given to the parties.
That coming from the UK or even from further away, OP by ViCo are a good solution is not at stake. But the savings are not as high as claimed. All the digital infrastructure with its servers and other devices consume a lot of electricity. It is a bit like e-cars which claim to have a zero carbon footprint.
To my knowledge the opposition did not come from Munich/The Hague-based representatives who loved the advantage of being able to walk down the road to have an OP. The opposition was about the mandatory character of OP by ViCo. I find it somehow derogatory to state that going for OP is a firm-funded jolly to Munich. I would agree if it is during the Oktoberfest!
The question of the deciding body not sitting together has not been discussed yet, by a BA or the EBA. But it is a problem which cannot be swept under the carpet. The communication between the members of the deciding body sitting together is way better and more efficient that sitting in different locations. I could not find any hints in the “travaux preparaoires” that the members of the deciding body could sit in different locations. Such a position is also not supported by Art 125. In any case it represents a problem which cannot be ignored. Here again Art 31 and 32 VCLT are of no help.
The only relevant question here is what can be reasonably expected in the years to come in terms of professional degradation when opposition divisions formed by isolated examiners sitting in different locations and connected with each other only via MS Teams will need to find some motivation to discuss the arguments of a party’s case. In the last two years, many things at EPO did work because experienced examiners personally know each other from the good old times. Wait and see.
ReplyDelete