Oral proceedings are formal hearings at which the parties to EPO proceedings can present their case orally. At first instance, they take place before the examining and opposition divisions, the Receiving Section and the Legal Division. They provide a party with the chance to be heard by the EPO before a decision is taken. The term "oral proceedings" does not include informal consultations.
The purpose of oral proceedings is to safeguard a party's right to be heard. If a party has requested oral proceedings, they will be scheduled. The right exists so long as proceedings are pending before the EPO. Furthermore, oral proceedings are an opportunity to discuss and - as far as possible - settle all outstanding issues. The parties might better explain their cases, and points not sufficiently clear might be clarified. Finally, oral proceedings serve to speed up proceedings as they offer a quicker way of debating than in writing. In addition, the EPO always strives to reach a final decision at the end of them.
Under Article 116(1) EPC, oral proceedings take place either at the request of any party to the proceedings or, in rare cases, at the instance of the EPO if it considers this to be expedient. Most oral proceedings are conducted before examining and opposition divisions. Although rare in practice, oral proceedings may also take place before the Receiving Section and the Legal Division.
If the EPO decides to hold oral proceedings, the parties to the proceedings will receive a formal summons (Rule 115(1) EPC). Where there are several parties to the proceedings, all of them will be summoned, to respect the principles of judicial impartiality on the part of the EPO and the equal rights of the parties. The summons is accompanied by a note drawing attention to the points which need to be discussed. The summons also fixes a final date for making written submissions to be taken into account in preparation for the oral proceedings. New facts and evidence presented after that date do not have to be considered (Rule 116(1) EPC). A request to change the date of the oral proceedings will be allowed only for serious reasons which justify fixing a new date.
At present, oral proceedings before the EPO's departments of first instance are conducted by videoconference (VICO). They are held on the EPO's premises only exceptionally and if there are serious reasons against holding them by VICO. In the summons, the parties to the proceedings are requested to provide the EPO with the contact details of the people attending, including an email address to which the EPO sends the details for connecting to the VICO.
Zoom is the standard software at the EPO for oral proceedings by VICO. It has proven to be a reliable, secure and well-functioning tool. Thanks to its various technical features - such as additional audio channels for simultaneous interpretation, digital whiteboards for sketching diagrams and digital deliberation or breakout rooms for the parties to confer in private - Zoom ensures that oral proceedings are conducted effectively, even in complex cases.
The EPO has taken all possible measures to ensure the protection of personal data and to guarantee the confidentiality, integrity and availability of information during oral proceedings by Zoom. For more information, consult the EPO data protection statement concerning Zoom. It contains an explicit description of the data that Zoom may process and for what purpose.
All participants in oral proceedings should ensure that their VICO equipment meets the technical requirements. Parties are encouraged to perform a test call well before the oral proceedings take place. More information on the technical requirements is available in our technical guidelines.
If a division decides to take evidence by hearing a party, witness or expert, they will be formally summoned to give evidence. They will also be asked to provide an email address, which the EPO will then use to communicate the connection details.
The division may also decide to take evidence by inspection. An inspection can be carried out by VICO with respect to any object that can be made available on the premises of the EPO, unless the taking of evidence concerns a feature that cannot be properly transmitted by a camera. For further details see the notice from the EPO dated 17 December 2020 concerning the taking of evidence by videoconference by examining and opposition divisions (OJ EPO 2020, A135).
Whereas oral proceedings before the Receiving Section, the Legal Division and the examining divisions are not public (Article 116(3) EPC), anyone may attend oral proceedings before the opposition divisions (Article 116(4) EPC). For those held by VICO, members of the public can request remote access. Details of public oral proceedings before the EPO are provided in the oral proceedings calendar.
For more information on oral proceedings held by VICO, see the FAQ. The EPO also offers a wide range of training - in the form of online courses and e-learning modules - to help patent professionals familiarise themselves with the conduct of oral proceedings by VICO.
The above information applies only to oral proceedings before the EPO's departments of first instance: the examining and opposition divisions, the Legal Division and the Receiving Section. Oral proceedings before the boards of appeal are governed by separate regulations.