The EPO has released the results of the most recent user survey on ViCo oral proceedings. Both supporters and critics of ViCo oral proceedings will find support for their view in the report. The EPO itself concludes that ViCo has been a huge success and is welcomed and supported by users. Opponents of ViCo will point to the significant minority of users who still find ViCo proceedings "poor" or "very poor".
In typical bullish fashion, the EPO characterises the results of the survey as providing strong backing for ViCo, with "[o]ver three-quarters of users rate VICO positively". The EPO press release states that the report shows that "provision of new digital tools in Zoom has made it even more effective for parties to argue their cases", and that "[m]any parties also welcome the savings in time, cost and carbon emissions resulting from not having to travel; these are conservatively estimated at over 1 000 tonnes of CO2 in 2021".
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| Cats on zoom |
Taking a deeper dive into the report itself, it appears that the EPO's claims are, in general, broadly supported. There can be no doubt that a shift to ViCo reduces the environmental impact of proceedings. Furthermore, given the furore over the introduction of ViCo, it is reassuring and perhaps a bit surprising that 38% of the users found their experience of ViCo hearings to be "very good".
Nonetheless, it should still come as some concern that 10% of users rated ViCo "poor" or "very poor". There is little in the EPO report explaining the reason underlying these responses, and how serious the issues were. The report does summarise results from the feedback forms, but in a general way, highlighting only the positive feedback. PatKat can not help wondering whether there might be a correlation between a users experience of ViCo and whether they won their case...however this data was not captured in the survey and is therefore just idle speculation. There may have been serious issues in a small but significant number of cases, but it is impossible to tell whether this was the case from the information provided in the report. It would also have been interesting to see how the user experience of ViCo compared with the user experience of in-person hearings, given that in-person hearings may have their own problems (printing and dodgy wifi comes to mind...).
So what is the future of ViCo going forward? The ViCo opposition pilot program ends on 31 December 2022. However, if the glowing EPO press release is anything to go by, there can be little doubt that the use of ViCo in opposition will be extended into 2023. The EPO President may even decide to put the use of ViCo in opposition hearings on a more permanent footing.
The full report can be read here.
Further reading
EPO user survey: ViCo oral proceedings continue (to divide opinion)
Reviewed by Rose Hughes
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Friday, November 18, 2022
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I think that it would be interesting to see the breakdown of opinions based on location...
ReplyDeleteThere is no doubt that the EPO President long ago decided to put the compulsory use of VICO for opposition proceedings on a permanent footing. In this regard, the sole purpose of the "survey" was to provide a plausible excuse for implementing that decision.
ReplyDeleteHaving tried on a handful of occasions to complete surveys run by the EPO, I have reached the firm conclusion that they are invariably designed in such a way as to guarantee the result favoured by the EPO's management. A common ploy in this regard is asking only those questions to which "positive" responses can be given. Another ploy is not to provide any option to provide (potentially negative) feedback on other issues. Alternatively, if such an option is provided, there is never any accurate reporting on the negative responses received (for example, on the seriousness of the issues raised in those responses, or how many such responses were received).
Looking back to pre-pandemic days, it is funny to remember that the EPO (and, in particular, the Boards of Appeal) were often very reluctant to use VICO. Also, as noted in G1/21, face-to-face is undeniably the format for oral proceedings that the authors of the EPC had in mind when that law was written. Nevertheless, it seems that the EPO President, without any authority from either the AC or a Diplomatic Conference, is now effectively re-defining the meaning of "oral proceedings" in Art 116 EPC ... to mean whichever format the EPO deigns to offer.
In the light of the above ,the question that we should all be asking is: which provision of the EPC will the EPO President "reinterpret" next? Personally, I shudder to think.
Undoubtedly face-to-face was in the mind of the EPO authors, but was there any other realistic option when it was written? I don't think it can be said that the authors of the EPC considered ViCo in the present form and opted against it
DeleteI think that we can agree that:
Delete- there is no direct evidence on the question of whether the authors of the EPC perceived that VICOs were not included within the meaning of "oral proceedings"; but
- by way of contrast, there is no doubt that the authors considered that the face-to-face format definitely was included within the meaning of "oral proceedings" (and, in fact, was potentially the only format that they envisaged).
But how do we get from those conclusions to the point where the "possibly not excluded" format is the only one on offer, meaning that parties are no longer entitled to the "definitely included" format?
Put another way, how is it that the EPO President is suddenly afforded the power to interpret Art 116 EPC in such a manner as to deny parties access to the only "definitely included" format?
Even the EPO's report admits that there are clear differences between the formats. So is that not a reason to err on the side of making the "definitely included" format available to the parties to oral proceedings?
At the German PTO there are ViCos now possible, too.
ReplyDeleteThe difference: a party can be allowed to take part remotely. It can always, even it requested a ViCo, take part in person (they would simply appear at the start on the premises).
Oh, and the opposition divison has to be on location and in one room...
Any survey of the EPO has the mere purpose of obtaining the result desired by the upper management. Should the result of the survey not be to the liking of the upper management, it is simply ignored or presented in such a way that the result confirms the views of the upper management of the EPO. In the present case, it is to show that users plebiscite OP in the form of ViCo.
ReplyDeleteThat 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. That a mixed mode for OP might not be to the liking of Business Europe is on point, but this lobbying group should not be allowed to decide what is good for all.
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.
In the meantime we have G 1/21 which at least considers that OP in person are the “gold-standard”. Why OP in-person are the gold standard before the BA and not before a first instance is a mystery, as Art 116, R 115 and 116 do not distinguish between first instance and BA.
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.
I further 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.
Mandatory OP by ViCo in first instance have 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.
The EPO President answered today: https://www.epo.org/news-events/news/2022/20221122.html
ReplyDeleteOn the general topic of EPO surveys, I find it interesting that no candidate survey results have been published for the EQE since 2019. Was the survey indeed done in 2021 and 2022? If so, why can't we see the results in the same place as the survey results from previous years?
ReplyDeleteAny survey of the EPO has always had the mere purpose of obtaining the result desired by the upper management of the EPO. Should the result of the survey not be to the liking of the upper management of the EPO, it is simply ignored or presented in such a way that the result confirms its views. In the present case, it was used to show that users plebiscite OP in the form of ViCo.
ReplyDeleteThat 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.
Following the results of the survey, it is without surprise that the president of the EPO has decided on 22.11.2022, that the all OP before examining divisions, opposition divisions, the Legal Division and the Receiving Section are to be held as by videoconference.
When looking at the EPC and its Rules of implementation, there is no legal basis for OP by ViCo to be found. OP by ViCo have been decided by unilaterally by the president of the EPO.
However, in the meantime the EBA has considered in G 1/21 that, at least for the BA, OP in person are the “gold-standard”. Why OP in-person can be the gold standard before the BA and not before the first instance is a mystery, as Art 116, R 115 and 116 do not distinguish between first instance and BA.
In 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.
According to Art 2(1) of the latest decision, the members of an examining or opposition division may connect to the oral proceedings by videoconference from different locations.
Be it in the EPC and its Rules of implementation, there is no legal basis to be found 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. Art 125 is of no help in this matter. For instance in Germany the parties can be connected by video, but the deciding body has to sit together.
The decision has fallen but it is not correct as the users should have 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 recent years, the EPO has always decided amendments to the procedure which could help it and disregarded the needs or wishes of the users.
The present decision is a prime example of EPO's casual attitude towards its users.
A further recent example is the suppression of the 10 days rule.
An older example is the strict limitation under R 79 to only send to the parties the opposition statement and the reply of the proprietor in spite of two decisions of the EBA under Art 112a that the parties have no obligations to regularly consult the electronic file. Worse the BA have adopted the same attitude in appeal.
How long will this deterioration of the service given to the users will continue? How can this deterioration be stopped?