Oral proceedings by videoconference – the attorneys’ view
15 December 2020
In the light of the developments in the coronavirus (COVID-19) pandemic, the Boards of Appeal have reassessed some of their measures for the arrangement and conduct of oral proceedings. In particular, the practice on conducting oral proceedings using videoconferencing (VICO) technology has been revised (see below).
Please note that these measures differ from those decided by the President of the European Patent Office for oral proceedings before examining and opposition divisions.
If parties cannot attend oral proceedings for which they have been summoned, they have to request a change of date (see Article 15(2) RPBA 2020).
Owing to the need for physical distancing, only a limited number of suitable rooms are available on the Boards of Appeal premises in Haar and therefore some oral proceedings may have to be held in the Isar building in Munich instead. Similarly, some oral proceedings which have already been scheduled to take place on the Haar premises will be moved to the Isar building.
In addition, if necessary to ensure that the rules on minimum physical distancing can be respected, the starting times of oral proceedings may be staggered (9.00, 9.30, 10.00 hrs, etc.).
As a general rule, parties will not be sent a communication informing them of a change of venue or starting time. As such changes may take place at short notice, it is up to the parties to consult the online calendar approximately three days before their oral proceedings to check whether they will take place on the Haar premises or in the Isar building and when exactly they are scheduled to start.
Owing again to the need for physical distancing, parties are asked to consider whether all representatives and accompanying persons need to attend. Attendance is generally restricted to a maximum of two people per party. Parties wishing to attend with more than two people should submit a reasoned request to that effect in advance of the oral proceedings. It will be for the board to decide on their request.
Parties, representatives and accompanying persons wishing to enter the buildings must complete a simple self-declaration form, which they should do in advance of their arrival. For the third statement in the form, please refer to the regularly updated list of international risk areas on the Robert Koch Institute (RKI) website. Any person not confirming all statements will be denied access to both the Haar premises and the Isar building. The competent board will be informed accordingly and will then decide whether the oral proceedings can be held without that person or whether they will need to be postponed.
It is possible for members of the public to attend oral proceedings. However, in view of the current circumstances, only limited places are available. Those interested in attending oral proceedings are therefore encouraged to announce this well in advance by email to email@example.com. They will be required to complete the same self-declaration form as parties and representatives and will likewise be denied access to the buildings if they don't confirm all statements. For the third statement in the form, please refer to the regularly updated list of international risk areas on the Robert Koch Institute (RKI) website.
Oral proceedings before the Boards of Appeal can also be conducted using VICO technology. Oral proceedings to be conducted by VICO are also listed in the online oral proceedings calendar. From 1 January 2021 boards may conduct oral proceedings by VICO even without the agreement of the parties concerned, as has now been made clear in the new Article 15a RPBA adopted by the Boards of Appeal Committee. Since the new provision merely clarifies an existing possibility, boards may adapt their practice as regards dispensing with the need to obtain the agreement of the parties concerned even before the date of its entry into force. The parties will be sent a communication informing them in good time before the date of the oral proceedings of any change from an in-person to a VICO format.
For information on technical aspects of the use of VICO technology, please see the information provided by the Office.
Members of the public wishing to follow oral proceedings conducted by VICO may do so in a dedicated room on the premises in Haar. In view of the current circumstances, however, only limited places will be available. It is not permitted to make photographic images or sound recordings or to retransmit any part of the oral proceedings. As is the case generally for visitors to the Haar premises, members of the public wishing to attend oral proceedings conducted by VICO will be required to complete a self-declaration form (for the third statement in the form, please refer to the regularly updated list of international risk areas on the Robert Koch Institute (RKI) website), which they should do in advance of their arrival, and are encouraged to announce their plans to attend well in advance.
Members of the public can always follow oral proceedings held by VICO remotely upon giving prior notice by email to firstname.lastname@example.org. Some of these hearings can also be followed on the premises of the Boards of Appeal in Haar.
It is not allowed to record the oral proceedings or forward the link received for connecting to the oral proceedings.
Strict hygiene measures are in place to ensure that oral proceedings are held in optimum conditions. These measures include, in particular, rules on minimum physical distancing and the requirement to wear a face mask on the way to the oral proceedings room. Boards may also require the use of face masks inside the oral proceedings room. Parties, representatives and other visitors are required to bring their own face masks.
The President of the Boards of Appeal will continue to monitor developments in the COVID19 situation and take any appropriate measures in response.
Given that this situation is still evolving rapidly, all parties to scheduled oral proceedings are advised to check the web section of the Boards of Appeal regularly for updated information.