Notice from the European Patent Office dated 22 November 2022 concerning oral proceedings by videoconference before examining and opposition divisions, the Legal Division and the Receiving Section, as well as consultations by videoconference before examining divisions
1. According to the decision of the President of the European Patent Office dated 22 November 2022 (OJ EPO 2022, A103), oral proceedings before examining divisions, opposition divisions, the Legal Division and the Receiving Section (hereinafter referred to as "the division") are to be held by videoconference.[ 1 ] Likewise, it is preferable to hold consultations in examination by videoconference.[ 2 ]
2. This notice provides updated information about the conditions and practice as regards oral proceedings and consultations by videoconference. It supersedes the previous notice concerning oral proceedings before examining and opposition divisions, and consultations, by videoconference dated 10 November 2020 (OJ EPO 2020, A122).
Format of oral proceedings
3. As a rule, where oral proceedings have been requested or are considered expedient by the division, the parties to the proceedings will be summoned to oral proceedings held by videoconference.
4. Oral proceedings may only be held on the premises of the European Patent Office (EPO) if there are serious reasons against holding them by videoconference.[ 3 ] Examples of serious reasons are, in particular, reasons relating to a participant in the oral proceedings as an individual (e.g. a proven visual impairment that prevents a representative from following oral proceedings on screen) and reasons related to the nature and subject-matter of the proceedings (e.g. where they involve the demonstration or inspection of an object where the haptic features are essential or the inspection of an object that cannot be made available for inspection by videoconference). Sweeping objections based on the reliability of videoconferencing technology or the non-availability of videoconferencing equipment will, as a rule, not qualify as serious reasons in this regard.
Requests for oral proceedings on the premises of the EPO
5. A request that oral proceedings be held by way of exception on the premises of the EPO should be filed as early as possible, preferably together with the request for oral proceedings.
6. If a request for oral proceedings on the premises of the EPO cannot be allowed and is received after the summons to oral proceedings, the division will inform the parties that the oral proceedings will take place by videoconference as set out in the summons and include a brief reasoning as to why the request cannot be granted. If the request is received before the summons has been issued, the reasons for the refusal will be given in the annex to the summons. In either case, a refusal of this type is not a separately appealable decision.
7. If a request for oral proceedings on the premises of the EPO is allowable and is received after the summons to oral proceedings by videoconference has been issued, the parties will be informed that oral proceedings will be held on the premises of the EPO as requested; where possible, the date of the oral proceedings will remain unchanged.
8. Detailed information on the videoconferencing technology and tools used by the EPO and on the minimum technical requirements is available on the EPO website. This information may be updated from time to time and users are therefore advised to check the website regularly. It will also be communicated to the parties prior to oral proceedings by videoconference, normally together with the summons.
9. All participants in oral proceedings or consultations by videoconference must ensure that their videoconferencing equipment meets the technical requirements specified. They are encouraged to perform a test call well before the oral proceedings take place.
Date and time of oral proceedings and consultations by videoconference
10. Oral proceedings and consultations held by videoconference will take place on an EPO working day within EPO working hours.
11. In addition to the summons, participants will receive an email confirming the date, time and the videoconference contact details to be used to establish the connection (in the form of a link or by other suitable means) and containing any further appropriate information, including on the organisation of the videoconference.
Remote connection of members of an examining or opposition division
12. The members of an examining or opposition division may connect to oral proceedings by videoconference from different locations. In such cases, they will deliberate and vote among themselves via a separate communication channel or so-called "virtual deliberation room".
Participation of parties and their representatives from different locations
13. The parties, their representatives and any persons accompanying the parties or representatives, as well as witnesses and experts, may connect to the videoconference from different locations.
Ban on recording
14. No image or sound recording, or retransmission, may be made of any part of oral proceedings or consultations held by videoconference other than by the EPO.
Submission and transmission of documents
15. During oral proceedings and consultations held by videoconference, documents must be filed by email.[ 4 ] The division will provide the parties or representatives with the email address to be used.
16. Any emails and attached documents filed by a party during oral proceedings with more than one party will be forwarded by the EPO to the other parties present at the proceedings, unless the party in question has already sent them directly to the email addresses indicated by the other parties. Therefore, each party must communicate to the chairperson and, where possible, to the other parties at the beginning of the oral proceedings the email address it wishes to use for receiving copies of such documents. Parties and representatives must ensure that they can immediately take note of any document sent to the email address indicated by them.
17. If the division consents, a party may present its screen for illustrative purposes; an item displayed in that way will not be considered to constitute a document submitted by that party.
18. Where, notwithstanding all efforts of the participants, technical problems prevent the oral proceedings by videoconference from being conducted or continued, a new summons to oral proceedings will be issued. As a rule, such new oral proceedings will be held by videoconference, unless there are serious reasons for not doing so.
Equipment and costs
19. The EPO videoconference studios are for the use of EPO staff only.
20. The EPO does not require the payment of a specific fee for holding oral proceedings or consultations by videoconference. Participants will bear only the costs for their connection to the internet and any technical facilities or software at their end.
Attendance of members of the public at opposition oral proceedings
21. Oral proceedings in opposition proceedings are public, in so far as the opposition division does not decide otherwise (Article 116(4) EPC). Oral proceedings before the Receiving Section, the examining divisions and the Legal Division are not public (Article 116(3) EPC).
22. Members of the public may gain remote access to opposition oral proceedings using a link provided upon request. Requests must be submitted via email to the EPO at at least three working days prior to the date indicated in the summons to the oral proceedings. Requests submitted later than that may not be processed in time and may consequently be disregarded.
23. The request must be filed by or on behalf of the member of the public wishing to attend the oral proceedings remotely ("the requester") and must indicate:
- the application number
- the date of the oral proceedings
- the requester's name
- the requester's email address
24. Any request for remote access to oral proceedings by a member of the public will be deemed to constitute acceptance of the conditions for remote attendance of oral proceedings as set out in the annex to this notice.
25. The EPO will send connection details for the oral proceedings to the requester at the email address indicated in their request.
26. In exceptional circumstances, access may be denied if the number of requests received exceeds the limit set and risks having an adverse impact on the conduct of the oral proceedings or if the requester, having attended oral proceedings by videoconference in the previous six months, has been found to have acted in breach of the conditions for remote attendance of oral proceedings by videoconference as set out in the annex to this notice.
27. Further information on the technology, procedure and etiquette for conducting oral proceedings and consultations by videoconference is available on the EPO website.
Conditions for public access to oral proceedings before opposition divisions
Remote attendance by a member of the public is subject to the following conditions:
1. Members of the public wishing to attend oral proceedings remotely must provide information about themselves in order to obtain the connection details for remote access.
2. Participation is restricted to listening to the sound and watching the images transmitted during the oral proceedings. Members of the public may not switch on their microphone or camera unless asked to do so by the chairperson. They are not entitled to speak or otherwise become involved in the oral proceedings, unless specifically invited to do so by the chairperson.
3. If so requested by the chairperson, a member of the public must temporarily switch on their camera to allow the participants to ascertain their identity just as if they were attending the oral proceedings in person on the premises of the EPO.
4. It is prohibited for members of the public, or any other person, attending oral proceedings remotely to make or retransmit video and/or sound recordings of any part of the oral proceedings. Members of the public wishing to attend oral proceedings must accept full responsibility for ensuring that the connection established using the details provided by the EPO is not used for recording or retransmission.
5. The connection details provided by the EPO to members of the public to enable them to attend oral proceedings remotely are intended for the sole and exclusive use of the requester. They may not share these details with any third party and must accept full responsibility for any consequences arising from the unauthorised use of the connection details by a third party.
6. Members of the public must abide by any instructions issued to them by the chairperson in the interest of the efficient and undisrupted conduct of the oral proceedings.
7. The submission of a request for remote access to oral proceedings by a member of the public will be deemed to constitute acceptance of these conditions for remote attendance of oral proceedings.
8. Any breach of these conditions may result in the exclusion of the member of the public from the oral proceedings. Where the chairperson finds that the above conditions have been breached in a manner that may compromise the efficient conduct of the oral proceedings or adversely affect the rights of the other participants in the oral proceedings in an undue manner, or if other serious reasons so demand, they may ask the member of the public concerned to leave the oral proceedings and terminate their connection.
[ 1 ] Article 1(1) of the decision of the President of the European Patent Office dated 22 November 2022 concerning the format of oral proceedings before examining and opposition divisions, the Legal Division and the Receiving Section (OJ EPO 2022, A103).
[ 2 ] Guidelines for Examination in the EPO C-VII, 2.1.
[ 3 ] Article 1(2) of the decision of the President of the European Patent Office dated 22 November 2022 concerning the format of oral proceedings before examining and opposition divisions, the Legal Division and the Receiving Section (OJ EPO 2022, A103).
[ 4 ] Article 1(1) of the decision of the President of the European Patent Office dated 13 May 2020 concerning the filing of documents during telephone consultations and during interviews and oral proceedings held by videoconference (OJ EPO 2020, A71).