The European Patent Office (EPO) has announced that almost all Examining Division oral proceedings and all examiner interviews will now be conducted by video conference. While there is little doubt that these changes have been introduced as a result of Covid-19, these changes appear to be permanent.
What are Examining Division oral proceedings?
While European patent practice is primarily a written procedure, the EPO gives applicants the right to be heard. The practical effect of this is that before the EPO can refuse a patent application, the applicant (or more typically the applicant’s representative) is summoned to oral proceedings before the Examining Division. The Examining Division for each patent application consists of the primary examiner (who conducted the search and issued the office actions prior to the oral proceedings), a chairman (typically a senior examiner who chairs the oral proceedings) and a second examiner.
The EPO is based in a number of different physical locations, with Examining Divisions mostly located in Munich or The Hague (with a rough 50:50 split). Under the previous EPO rules, the default position was that oral proceedings took place at the EPO premises, which in practice meant the applicant’s representative typically travelling to meet with the Examining Division in Munich or The Hague.
It was possible under the previous EPO rules to request oral proceedings by video conference, and Venner Shipley has done this successfully for the last 10 or so years as a matter of routine. The use of video conference was, however, something that needed to be requested specifically and the EPO did not always grant such a request. Typical reasons for the EPO refusing a request for oral proceedings by video conference were that the case was deemed by the Examining Division to be too complicated for video conference, or that there were simply no rooms with video conferencing facilities available on the allotted day of the oral proceedings. If the EPO refused a request for oral proceedings by video conference, there was nothing the applicant could do about it.
The EPO’s new rules for Examining Division Oral Proceedings
A Decision of the President of the European Patent Office dated 1 April 2020 and its accompanying Notice has, however, changed EPO practice regarding Examining Division oral proceedings significantly. The biggest change is that video conference is now the default, with the EPO only allowing oral proceedings on the premises of the EPO under exceptional circumstances, for example when the oral proceedings requires direct taking of evidence. This change also applies to interviews with the examiner, which now must also take place by video conference.
Another important change, which no doubt has been precipitated by the current lockdown measures in most of Europe as a result of Covid-19, is that the new rules expressly allow members of the Examining Division to connect to the proceedings remotely from different locations. In such situations, the members of the Examining Division will conduct their own private video conference for deliberation and voting. The new rules also enable the applicant and their representative to connect to oral proceedings held by videoconference from different locations.
These changes affect all summons to oral proceedings issued on or after 2 April 2020 and also apply to Examining Division oral proceedings for which a summons to oral proceedings on the premises of the EPO was notified prior to 2 April 2020, which the applicant has agreed to have held by videoconference. As a result, it appears that any Examining Division oral proceedings that are currently scheduled to be on the premises of the EPO can now be held by videoconference if the applicant requested that.
It is, however, worth stressing that these permanent changes only apply to oral proceedings before Examining Divisions, and not to oral proceedings before the Boards of Appeal or to oral proceedings before Opposition Divisions.
These changes to Examining Division oral proceedings are very welcome, and will be very well received by applicants around the world, reducing the economic and environmental cost of travelling to the EPO’s premises.