Attending oral proceedings by video conference (VICO) during examination has been possible for over 20 years at the European Patent Office (EPO). When the COVID-19 pandemic hit, the EPO was quick to also offer the use of VICO for oral proceedings in front of the opposition division, and the EPO launched a pilot project mandating VICO as the default for oral proceedings in opposition.

VICO by default

The EPO has now extended its pilot programme. This means that oral proceedings by VICO will be the default for oppositions until at least the end of January 2022 (announcement). Similarly, the EPO has stated that oral proceedings will also be by VICO in examination, and when in front of the legal division or receiving section.

A party can request to attend oral proceedings in person, but they will need to provide serious reasons against holding the oral proceedings by VICO and, if successful, the oral proceedings will be postponed until after the end of January 2022.

Moving to Zoom

The EPO was initially using Skype for business for its oral proceedings. However, due to limitations with that software it has been moving over to using Zoom. The EPO has now announced that it will be decommissioning Skype for Business as of 1 October 2021, and instead will exclusively use Zoom for all oral proceedings before the receiving section, legal division, and the examining divisions. Zoom has already been used exclusively in opposition proceedings since the beginning of 2021.

The use of Zoom means that, for example, up to 49 camera streams can be concurrently observed during the oral proceedings, whereas Skype for Business was limited to five, and alternative audio channels can be used for simultaneous translation if required and requested by a party to the proceedings.

Seeing the benefits

Attendance via VICO can be from anywhere in the world, meaning that applicants who are party to proceedings can attend virtually with their attorneys.

Similarly, it is easier than ever for interested third parties to attend oral proceedings that are open to the public, such as opposition proceedings involving their competitors, by simply notifying the EPO that they plan to attend (details here). Whilst contact details must be provided to the EPO, and such third parties may need to briefly switch their cameras on so that parties to the proceedings can see their faces, third party attendance can otherwise be relatively anonymous.

VICO Appeal

The Boards of Appeal have also been carrying out oral proceedings by VICO, and since the end of last year they have also not required party consent to do so.

The general ability of the EPO to hold oral proceedings by VICO, without the consent of the attending parties, has been challenged and the Enlarged Board of Appeal is considering the legality of it in G1/21. The decision in G1/21 is expected very soon and, whilst it is expected that the decision will affirm the legality of such proceedings, the reasoning and finality of the decision will be important in definitively establishing this new way of working.