According to recent decisions from the Boards of Appeal, G1/21 on ViCo oral proceedings is now out-dated. According to the Boards, the view of G1/21 that in-person proceedings are the gold standard is obsolete in view of improvements in ViCo technology. The latest decision in T 0758/20 adds to this narrative from the EPO that ViCo oral proceedings should be considered the "new gold standard".
ViCo oral proceedings catch-up
The mandatory use of ViCo oral proceedings was introduced in response to the travel restrictions caused by the COVID-19 pandemic. However, beyond a simple response to COVID-19, the switch to ViCo proceedings was also a key component of the EPO's digital strategy. As such, whilst the EPO has accepted that the measures put in place in order to deal with the pandemic are no longer required (IPKat), ViCo oral proceedings continue. Following a decision from the EPO President the use of ViCo is now the default form of oral proceedings before the Opposition and Examination Divisions (IPKat). The EPO has also introduced new Article 15a of the Rules of Procedure of the Boards of Appeal (RPBA), under which Boards of Appeal have the discretion to hold proceedings by ViCo whenever they consider it appropriate to do so.
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| True Gold |
The legality of mandatory ViCo oral proceedings was considered by the EBA in G1/21. The EBA found that the use of ViCo during appeal hearings was permitted during a state of general emergency, as ViCo did not fall below the threshold required by the right to be heard (Article 113 EPC). However, the EBA also noted that in-person proceedings should nonetheless be the "gold-standard" and the default form of proceedings due to inadequacies of ViCo technology (IPKat),
Following G1/21, the EPO was faced with the problem of reconciling their digital strategy with the clear direction from the EBA that in-person proceedings should be the default (IPKat). The Boards of Appeal initially avoided the issue by continuing to find, whenever challenged, that there was a continued state of general emergency justifying the use of mandatory ViCo proceedings (IPKat). However, this position became untenable following the EPO announcement of the cessation of the measures put in place for the pandemic.
Dynamic interpretation of "the gold standard"
One of the first Boards of Appeal faced with implementing G1/21 after COVID-19, found a simple if controversial work around to the problem of reconciling the EPO's digital strategy and the reasoning in G1/21. According to the Board of Appeal in T 1158/20, ViCo technology has improved so much since G1/21, that ViCo proceedings are now equivalent in quality to in-person proceedings (IPKat).
A further decision from the Board of Appeal has now come to a very similar finding. The decision in T 0758/20 related to an appeal from the Opposition to uphold the patent EP2884860. The Opponent requested that oral proceedings for the appeal be held in-person. The Opponent also requested a referral to the EBA on the question of the compatibility of Article 15a(1) RPBA with G1/21. In particular, the Opponent requested a referral on whether the discretion of Boards of Appeal to hold oral proceedings by ViCo for any reason provided by Article 15a(1) RPBA was compatible with the reasoning in G1/21 that in-person proceedings should be the default.
The Board of Appeal in T 0758/20 first noted that Article 15a(1) RPBA unequivocally permits Boards of Appeal to hold oral proceedings by ViCo whenever they so decide, irrespective of whether the parties agree. In the case in question, the Board of Appeal used their discretion to hold proceedings by ViCo in view of the fact that there were still some COVID-19 restrictions in place that might affect travel to Haar.
The Board of Appeal then also went on to consider how G1/21 should be interpreted absent a state of emergency. The Board of Appeal concluded that the reasoning in G1/21 stating that in-person proceedings should be the default could be ignored for two reasons. First, the EBA in G1/21 had rephrased the question in G1/21 to the context of a state of general emergency. In view of the reformulated question, the Board of Appeal in T 0758/20 reasoned that the EBA's observations on the inadequacies of ViCo absent a state of general emergency were irrelevant. Second, the Board of Appeal echoed the previous decision in T 1158/20 by noting that G1/21 was issued during a time in which the Boards of Appeal had little experience of ViCo. Since G1/21, both Boards of Appeal argued, ViCo technology has greatly improved such that it is now equivalent to in-person proceedings:
"holding oral proceedings by videoconference is no longer disadvantageous compared to the gold standard as it was when decision G 1/21 was taken. On the contrary, in the board's view, nowadays oral proceedings held by videoconference are often equivalent to a hearing in person" (T 0758/20)
In their praise of ViCo, the Board of Appeal in T 1158/20 and T 0758/20 are singing from the same hymn sheet. The Board of Appeal in T 0758/20 also considered its decision as being entirely aligned with G1/21, and thus rejected the Opponent's request for a referral to the EBA.
Final Thoughts
There are certainly many advantages to recommend ViCo as an alternative to in-person proceedings, not least being their lower environmental impact. However, the interpretation of G1/21 by the Boards of Appeal is unfortunately very reminiscent of the EPO's approach in the controversial Pepper case (G3/19), whereby a change in the external political circumstances was found by the EBA to justify a change in their legal interpretation of the EPC (IPKat). On ViCo, the Boards of Appeal are thus far aligned on a dynamic interpretation of "in-person proceedings should be the default" as being out-dated and irrelevant, in view of what is being touted as the dramatically improved quality of ViCo. The Boards of Appeals' insistence on the improved quality of ViCo, and their equivalence to in-person proceedings, is also not currently backed up with evidence. This Kat wonders if ViCo technology has indeed made such leaps since July 2021, when G1/21 was decided. In the absence of evidence, we are left with the question of whether ViCo proceedings are really as golden as the EPO insists they have become.
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)
- EPO President puts ViCo in opposition and examination on a permanent footing (24 Nov 2022)
- Pandemic measures cease but ViCo Boards of Appeal oral proceedings continue (27 Jan 2023)
- Board of Appeal finds ViCo is now equivalent to in-person proceedings, and that G 1/21 "gold-standard" no longer applies (T 1158/20) (6 March 2023)
Reviewed by Rose Hughes
on
Monday, April 17, 2023
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Posts
I've always been a bit of a fan of ViCo for exam hearings, but as my experience of ViCo opposition hearings grows, I have been surprised by how few of my opposite number follow the guidance set out to improve the experience for all: one face per camera, use a headset and dedicated mic, etc. With these in place I do believe the hearings can be fair, which is surely the point. Whether better or not depends on a number of factors. In amongst many fine experiences, I once had a hearing in Berlin where the opposition division were silhouetted against a window with bright sun, and a hearing next to bridge in Munich with a constant stream of Octoberfest participants. These were not ideal, and for reasons outside my control- at least I have influence over my camera and internet connection quality!
ReplyDeleteSo true. Still surprised that so many firms think it's OK to simply use their wide angle VC set up in their board room for OPs. I suppose they have to justify the expenditure on a costly system, but really one face per camera and a decent headset is far superior.
DeleteDon't get me started on the systems that attempt to zoom in on the current speaker. Thankfully I don't have any vestibular issues but I imagine for some they are quite nauseating.
Without that boardroom and flexible camera, it's impossible for representatives, experts and parties to sit together in the hearing OPs, which on anything but simple cases is beneficial for efficient and effective pleading. A good camera setup allows to zoom in on whoever is pleading, and a good tabletop or hanging mic gives studio-quality audio, and there are even technical solutions allowing multiple headsets in one room for interpreters. I don't see a problem with that. We invested a lot in our virtual hearing rooms, and they work well. BWT have always had a very nice setup too when I have faced them.
DeleteI see what you mean, but you can also just set up multiple stations in the same room. This allows for backchannel communications and one face per camera/headsets.
DeleteIn some ways this is superior for communication with your team - people can be muted and/or off camera for example.
There's a good comment from "Time to move on" below: "The problems are different, but they are not necessarily worse."
And so we lay to rest the final vestiges of the appearance of impartiality of the EPO's Boards of Appeal.
ReplyDeleteReaching conclusions based upon assertions for which no evidence is provided (no doubt because no such evidence exists). Ignoring an obligation under Article 21 RPBA to refer questions to the EBA. All to arrive at a conclusion that, conveniently, enables the EPO's management to continue implementing their digital strategy.
Such a level of disregard for the rule of law suggests that at least some Boards have given up even trying to present a facade of independence.
I have just seen in LinkedIn the EPO advert on its "flexible working policy":
DeleteYou have explored 11.98% of the world” – How much have you explored?
A colleague informed us in a team meeting that he has travelled to over 100 different countries. With the European Patent Office flexible working policy I am keen on taking up this challenge! Try this interactive map to find out your %
Of course, prompting visiting the world is very "green"...if done by walking. But I'm not sure that this is the idea underpinning the message. Sad reality is that a consistent part of EPO people either have bent their back to EPO upper crust dictat or are truly happy with the possibility to work from distance. This explains how useless is any legal fight of (most?) stakeholders to see the indications of the EBoA respected.
This is akin to "boots on the ground diplomacy". That is, the EPO is seeking to establish a situation that is incompatible with a proper interpretation of G 1/21... thus ensuring that the Boards are faced with a choice between following the rule of law or killing their careers by creating (administrative) chaos within the EPO. A similar approach is evident in the inadequate physical space that has allocated to the Boards for when they relocate to central Munich.
DeleteFollowing T 1158/20, T 758/20 is not the only decision of the same board forcing OP by ViCo. T 2762/19 has to be added to this list. See my posts in another blog.
ReplyDeleteWhat is interesting is the fact that the present board, as well that in T 1624/20, have added a further criterion when deciding to hold forced OP by ViCo.
The boards insisting to hold OP by ViCo seem to have added a new criterion to be justified by the party requiring OP in person rather than by ViCo: the requesting party has to show why an OP by ViCo would not be “appropriate” in the actual case. Whilst the term “appropriate” is to be found in four places in G 1/21, cf. reasons 19, 37, 39 and 43, it is nowhere to be found in reasons 48 and 49 of G 1/21 which are at the core of G 1/21.
It cannot be that for reasons, manifestly of convenience, that the boards can decide when a case is “appropriate” for an OP by ViCo. It is also not for a board to decide that OP by ViCo are equivalent to OP in person, as long as the EBA has not decided so.
In G 1/21, the EBA established a double condition for OP to be held by ViCo. The parties should be impaired in coming to the premises of the EPO and only then the case should be suitable for holding the OP by ViCo. It is difficult to claim that parties are presently impaired to come to the premises of the EPO
As far as G 1/21 is concerned, it is worth reminding Art 21 RPBA20:
Should a Board consider it necessary to deviate from an interpretation or explanation of the Convention contained in an earlier decision or opinion of the Enlarged Board of Appeal according to Article 112, paragraph 1, EPC, the question shall be referred to the Enlarged Board of Appeal.
The Boards have thus no competence to set aside G 1/21, be it with a “dynamic interpretation” à la G 3/19, as in G1/21the EBA made abundantly clear that the gold standard for OP is OP in person.
If all parties wish OP by ViCo, then there is no reason not to hold OP by ViCo.
I all parties wish OP in person it is not for a board to decide that the OP is to be held by ViCo and the parties to be required to explain why the case is not appropriate for OP by ViCo.
If not all parties agree on OP by ViCo, then a mixed mode OP is to be offered to the parties.
I am fully aware that Art 15a(1), as noted by the opponent in the present case, gives the boards a infinite discretion in matters of OP.
The minimum would be for Art 15a(1) to be aligned on G 1/21. Knowing what happened around G 1/21, it is no more than a wish, as holding OP by ViCo correspond to the general policy of the EPO.
After all, it is not for the EPO and its BA to decide what is good for the parties.
I find proceedings by ViCo more tiring and objectively causing headaches due to prolonged screen exposure. There is no way but to keep staring at the screen for long hours, even when we are sent to break, I cannot leave the computer - I need to prepare a submission or study the submission by email from another party. Everything could run much smoother, if the proceedings were by the rule interrupted for off screen time every hour for 10-15 minutes. We may also need to voice these concerns towards the Divisions and Boards.
ReplyDeleteIt is somehow ironical that for the EQE the EPO considers that candidates should not be obliged to sit facing a screen more than three hours, but once the candidates have been successful and are qualified representatives, they are perfectly able to sit in front of a screen for much more than three hours.
ReplyDeleteThis is a type of logic which is difficult to follow, or did I miss something?
There is just no problem here.
ReplyDeleteArticle 116 EPC establishes that oral proceedings shall take place in certain circumstances. It is silent about whether these are in person or by teleconference (video or phone). In the past, it was more convenient to hold them in person because teleconferencing software was inadequate. Now, teleconferencing software is very good. Where the case only involves arguments between representatives and the EPO, videoconferencing technology does nothing to diminish the quality of the discussion as compared with in person conferences.
In the vast majority of cases, any arguments based on the loss of body language cues are irrelevant, provided the party is heard, which is clearly perfectly possible with videoconference. While the party has a right to be heard, it is also the representative's responsibility to ensure that their client is heard. If that requires a change of approach compared with in person hearings, so be it.
The situation is more complex in the tiny minority of cases which involve evidence of fact being given by a witness in person. In these cases, non-verbal cues may provide information about the character or reliability of the witness. This evidence should continue to be heard in person.
In so far as logistical difficulties or access issues arising from extended screen use or communicating within a team are concerned, these are clearly the party's problem and not those of the EPO or the Boards of Appeal. It is just reality that most representatives will spend 9 to 10 hours of every single day of their lives staring at a screen. They can be expected to be able to do this, just as they previously were expected to fly to Munich, the Hague, Berlin or Haar and sit in an auditorium for hours on end. Headaches and bad backs are an occupational hazard for the European patent attorney. Similarly, when sat in the auditorium it was not particularly easy to communicate with team members - this involved passing scribbled notes and hushed whispers back and forth while trying not to disturb the speaker. It is in many ways easier to have a side-bar in a separate channel with VC hearings.
The problems are different, but they are not necessarily worse. Indeed, the pros of VC clearly outweigh the cons in almost all circumstances, and since neither in person hearings are prescribed nor VC hearings proscribed, VC hearings should be preferred. This is perhaps the one issue that the EPO is dead right on.
Thank you. Now we have your views on the relative pros and cons of VICO. All very well, but completely irrelevant to the issue at hand, which is the legal basis for conducting "without consent" VICO proceedings.
DeleteI am frankly astonished by the number of individuals within the patent profession who confuse a situation that they consider to be desirable with a situation that is lawful. Even taking into account the possibility of "dynamic" interpretations, the law simple does not work like that.
So yes, there is a problem here. The problem is a blatant breach of a Board's obligations under Article 21 RPBA. That is, whilst the Board may have felt that there were reasons to diverge from the ruling in G 1/21, they should not have "creatively" interpreted that ruling without first referring questions to the EBA.
@ Time to move on
ReplyDeleteEither you are part of the upper circles of the EPO or you are a representative sitting far away from Munich, The Hague or Berlin, or you want to have OP without having to move from your residence.
This is all acceptable. What is not acceptable is that you want to impose your views on other users of the EPO.
As shown by Proof of the Pudding, you have forgotten the most important point. In G 1/21, the EBA has made clear that the gold standard in matters of OP is in-person OP. Until the EBA gives another interpretation, boards are bound to G 1/21 and this interpretation stands.
Boards do not have the competence to declare G 1/21 as being outdated, cf. Art 21 RPBA 20. Boards do neither have the competence to require that the parties have to show that the case is not suitable for OP by ViCo. This secondary aspect in G 1/21 cannot become a further pretext for boards not to abide by the gold standard.
It is for the parties to decide what form of OP suits best their interests. It is neither for the EPO and its boards or another representative to tell them what they should do. The convenience of the EPO and of its boards, or that of some representatives is not the yardstick against which to measure the form of OP.
In the absence of reasons impairing parties to attend OP in person, the default form of OP is in-person OP. If all parties agree on OP by ViCo, then OP by ViCo can be held, but boards can decide nevertheless to hold OP in person. There are plenty of examples. If all parties agree on OP in-person, it is not for the EPO or its boards to decide the contrary. If the parties do not agree on the form of OP, then a mixed mode of OP should be offered.
You also overlook one important aspect: what is the legal basis in the EPC for allowing deciding bodies of the EPO, be it first instance divisions or boards of appeal, not to sit together when deciding on the fate of an application or of a patent/opposition?
In a legal system, the end does not justify the means. The rule of law has to apply. In G 1/21, the EBA accepted one exception to OP in person: when parties are impaired in their travel. It is nothing new that exceptions have to be applied with care and cannot be generalised. There are dozens of decisions of the boards insisting upon this aspect.
Furthermore, there is a difference in sitting alone in front of a screen for many hours a day and to sit in front of a screen whilst you have to follow what other people say. My experience in teaching by ViCo and teaching in person shows the discrepancy between the two forms of teaching. Teaching by ViCo does not have the same impact as in person. Why should it be different for OP?
@ Time to move on
ReplyDeleteEither you are part of the upper circles of the EPO or you are a representative sitting far away from Munich, The Hague or Berlin, or you want to have OP without having to move from your residence.
This is all acceptable. What is not acceptable is that you want to impose your views on other users of the EPO.
As shown by Proof of the Pudding, you have forgotten the most important point. In G 1/21, the EBA has made clear that the gold standard in matters of OP is in-person OP. Until the EBA gives another interpretation, boards are bound to G 1/21 and this interpretation stands.
Boards do not have the competence to declare G 1/21 as outdated, cf. art 21 RPBA 20. Boards do neither have the competence to require that the parties have to show that the case is not suitable for OP by ViCo. This secondary aspect in G 1/21 cannot become a further pretext for boards not to abide by the gold standard.
It is for the parties to decide what form of OP suits best their interests. It is neither for the EPO and its boards or another representative to tell them what they should do. The convenience of the EPO and of its boards, or that of some representatives is not the yardstick against which to measure the form of OP.
In the absence of reasons impairing parties to attend OP in person, the default form of OP is in-person OP. If all parties agree on OP by ViCo, then OP by ViCo can be held. If all parties agree on OP in-person, it is not for the EPO or its boards to decide the contrary. If the parties do not agree on the form of OP, then a mixed mode of OP should be offered.
You also overlook one important aspect: what is the legal basis in the EPC for allowing deciding bodies of the EPO, be it first instance divisions or boards of appeal, not to sit together when deciding on the fate of an application or of a patent/opposition.
In a legal system, the end does not justify the means. The rule of law has to apply. In G 1/21, the EBA accepted one exception to OP in person, when parties are impaired in their travel. It is nothing new that exceptions have to be applied with care and cannot be generalised. There are dozens of decisions of the boards insisting upon this aspect.
Furthermore, there is a difference in sitting alone in front of a screen for many hours a day and to sit in front of a screen whilst you have to follow what other people say. My experience in teaching by ViCo and teaching in person shows the discrepancy between the two forms of teaching. Teaching by ViCo does not have the same impact as in person. Why should it be different for OP?