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Oral proceedings by videoconference – the attorneys’ view

 

FAQ - Oral proceedings held by videoconference

Technical questions for oral proceedings held by videoconference

Which technical systems can I use for oral proceedings held by VICO?

Where consultations and oral proceedings in examination are to be held by videoconference (VICO), Skype for Business will normally be used.

For these cases, the EPO supports the following technologies:

  • Microsoft Skype for Business (SfB) Clients and SfB Room Systems
  • Browser-based web meetings via Skype for Business web app
  • SIP/H.323 video-conferencing systems

No specific hardware is needed to join an SfB VICO.

The SfB browser plugin, which is available free of charge, is sufficient (see technical guidelines).

Please note that (standard) Skype cannot be used.

Where oral proceedings in opposition are to be held by VICO, Zoom will normally be used.

For these cases, the EPO supports the following technologies:

  • Zoom desktop client installation on Windows (version 5.2.1, i.e. 44052.0816 or higher), Mac OS (version 4.5.3261.0825 or higher)
  • Zoom mobile app for iOS (version 4.5.0 [3261.0825] or higher) or Android (version 4.5.3261.0825 or higher)
  • Zoom web client (Chromium Edge 80 or higher, Google Chrome 53.0.2785 or higher, Firefox 76 or higher, Internet Explorer 10 or higher, Safari 10.0.602.1.50 or higher) for oral proceedings not involving simultaneous interpreting

Is it possible to use the Zoom web client for oral proceedings held by VICO?

Due to its limited functionality, the Zoom web client is not suitable for proceedings involving simultaneous interpreting. If you do not require simultaneous interpreting during a Zoom VICO, you may, if no other solution is possible, use the Zoom web client. If this is the case, you should inform the opposition division in advance since your functionalities will be limited. Information on the functionalities available via the web client can be found here: https://support.zoom.us/.

Can I choose between Zoom and Skype for Business?

By default, Skype for Business (SfB) is used for oral proceedings in examination and Zoom is used for oral proceedings in opposition.

For VICOs with interpreting, only Zoom can be used.

I have some concerns about the security of Zoom, and my company’s IT policy restricts its use. What steps has the EPO taken to ensure the protection of personal data?

The EPO has taken all possible steps to ensure the protection of personal data and safeguard the confidentiality, integrity and availability of information. In addition, Zoom has signed a binding agreement to comply with the data protection obligations stemming from the EU’s General Data Protection Regulation (GDPR) and the EPO’s Data Protection Guidelines. For more information, see the EPO data protection guidance when using Zoom for oral proceedings by VICO (https://www.epo.org/about-us/office/data-protection-and-privacy/zoom.html).

For more information on the processing of personal data by Zoom or its subcontractors, see its privacy policy. Zoom signs agreements with all its service providers in which it undertakes not to process data for its own purposes or for the purposes of any third party.

Where the EPO organises oral proceedings on the Zoom platform and invites the parties to dial in, we will do so in accordance with the most secure options available.

The EPO will use the Zoom platform for public proceedings only. It is recommended not to exchange confidential information publicly.

How will the EPO check the identity of the parties to the proceedings?

Unless they are personally known to a member of the division, the parties and their representatives must provide proof of identity at the beginning of the oral proceedings (see GL E-III, 8.3.1). This proof of identity should take the form of a national ID card, a passport or an EPO badge. The identity document may be presented in one of the following ways:

  • By showing it to the camera at the beginning of the VICO either in the public meeting room or to a member of the division in a separate (non-public) meeting room, or
  • By emailing a copy to the address provided to the parties at the beginning of the oral proceedings, or
  • Via the EPO Online Filing options no later than two days prior to the oral proceedings. For the different means of electronic filing see https://www.epo.org/applying/online-services/online-filing.html).

In order for the division to be able to confirm the identity of the person concerned, the full name (first name and surname) and the picture of the ID should be visible. All the other information on the identification document can be kept hidden if so wished, as long as it is possible to recognise that it is an official identification document. For data protection reasons, copies of identification documents sent per email are deleted and are not included in the file. Copies submitted via Online Filing are put in the non-public part of the file.

What will I see on the screen?

You should normally be able to see all the participants, although this will depend on the technology you use for connecting to the VICO. For example, if you use the Zoom web client you will only be able to see the person who is actually talking at any given time.

All cameras should be switched on at the beginning of the VICO in order to allow for the identities of the participants to be checked and should remain on so that all parties are visible throughout the entire proceedings. You should only switch on your microphone when you are given the floor by the chair.

How can I present information during oral proceedings?

With the authorisation of the division, you can present information either by sharing your screen or by showing information on paper via the camera. Any items displayed in this way will not be considered to constitute a submitted document. Before the presentation, the division might ask you to submit the information so that it can be included in the minutes and/or distributed to the other parties.

For security reasons, screen sharing is not active by default in SfB or Zoom. It can, however, be activated by the chair at the request and subject to the agreement of the division.

The whiteboard functionality in Zoom is disabled and cannot be used.

What should I do if the sound is poor?

To be able to use the Skype web app, Zoom desktop client or Zoom mobile app for iOS or Android you should have at least 2Mbps of free up- and download bandwidth.

If the members of the division are in different locations, how will they all receive any documents I send by email at the same time?

At the beginning of the oral proceedings, the chair will explain how to file submissions, and the email addresses to be used by all parties will be provided (see Decision of the President of the EPO dated 13 May 2020 (OJ EPO 2020, A71)).

Please note that emails from external parties to the EPO pass through filters and can take a few minutes to arrive if they include attachments.

Can I take a break if I get tired of speaking to the screen?

As in proceedings where the participants are physically present, you should let the chair know if you need a break. You do not need to give any medical reasons for needing a break.

How are the breaks organised?

The chair will announce a break and the division will change to a non-public virtual deliberation room. The parties and any members of the public present will remain in the virtual oral proceedings room. They can mute their microphones and switch off their video images.

Will the system be shut down during the break and will we need to reconnect afterwards?

No, the system will not be shut down, but people may leave the meeting and reconnect afterwards.

Are “deliberation rooms” available in SfB and Zoom for parties’ internal discussions?

As the host (the chair) has access to any virtual deliberation rooms, the EPO will not set up any virtual deliberation rooms for the parties. If necessary, parties should organise their own virtual deliberation rooms.

Do I need special equipment for videoconferencing?

System

To prevent resource issues, we recommend that you use a powerful computer running a recent Windows or Macintosh operating system. The same applies to your mobile device if you want to use the Zoom mobile app for iOS or Android.

Bandwidth

Please make sure you have enough internet bandwidth. You should have at least 2Mbps of free up- and download bandwidth. A cabled network connection is preferable to a wireless connection.

Camera

We recommend that you use a good-quality webcam (HD 720p or above), preferably a PTZ (Pan-Tilt-Zoom) model. Please note that most built-in webcams do not deliver the required quality and flexibility.

Audio

Please use a high-quality audio device, e.g. a USB microphone (clip-on or stand-alone) and speakers or a USB headset with integrated microphone with a frequency response of at least 125 Hz to 15000 Hz and an echo-cancelling function. The use of wireless headsets connected to the computer via Bluetooth or phone earbuds, even if wired, is not recommended for VICOs involving interpreting. If two or more people who are physically present in the same room intend to speak during the proceedings, they must each/all have their own individual headsets/microphones and cameras. Always use “join with computer audio” when joining a meeting.

Monitor/screen

It is important to use a good-quality monitor/screen. Also, the larger the screen the better the visual experience. You can check the technical requirements at https://www.epo.org/applying/online-services/proceedings/technical-guidelines.html.

What happens if my connection or reconnection fails?

Prior to the proceedings, the parties will be asked to provide a telephone number to be used during the VICO in case technical issues arise.

The EPO will keep connection details as communicated by the parties as non-public information and they will not be exchanged through the chat.

At the beginning of the proceedings, the chair may also provide a telephone number for contacting the division.

If your connection/reconnection fails, the division will contact you by phone. Alternatively, you can send an email to the division or call them. Technical support will be on hand.

Where, notwithstanding all efforts of the participants, technical problems prevent the oral proceedings by VICO from being conducted, a new summons to oral proceedings will be issued. As a rule, such new oral proceedings will be held by VICO, unless there are serious reasons for not doing so.

Is there anything I can do to help the interpreters working in the VICO?

Please use a high-quality audio device, namely a USB headset with integrated microphone or a USB microphone (clip-on or stand-alone) with echo-cancelling function.

Please DO NOT USE:

Microphones built into a PC, wireless headsets connected to the computer via Bluetooth, phone earbuds (even if wired) or standard VICO room equipment with array microphones. None of these perform adequately for remote interpreting. They do not cover the frequency range of 125 Hz to 15000 Hz that simultaneous interpreters need to listen and speak at the same time; see ISO/PAS standard 24019.

Note that if two or more people are physically present in the same room and intend to speak during the proceedings, they MUST avoid echoes and MUST each have their own headset/microphone and camera. Preferably they should remove their mask while speaking.

Can I leave my microphone on the whole time? There is often a delay when switching it back on.

The chair will decide how to conduct the oral proceedings but, in order to avoid background noise, the microphones of all participants other than the chair should normally be muted.

The parties and members of the division other than the chair should switch on their microphones when they are given the floor by the chair. Delays in activation of the microphone will be taken into account.

Can I use the premises of my national patent office to hold a VICO?

Please contact your national office direct. However, please note that you don’t need any special hardware to join a VICO via Skype for Business.

What alternatives are there should the available internet connection not be suitable?

Should a VICO not be possible at a specific location due to an unsuitable internet connection, you may travel to a location where there is a suitable internet connection.

Users are strongly advised to perform a test call in good time prior to the date of the  oral proceedings, i.e., at least 10 working days (ideally 2-3 weeks) in advance. In view of possible software updates, it is not recommended to perform the test call too early. The EPO offers the possibility for test calls on Mondays to Fridays (except days on which the EPO filing offices are closed) from 11.00 to 16.00 hrs CET. You can arrange a test call by contacting the EPO’s ServiceLine on Mondays to Fridays (except days on which the EPO filing offices are closed) from 07.30 to 18.00 hrs CET, by telephone (+31 70 3404444) or email (serviceline@epo.org). ServiceLine will schedule a 30-minute test session and send you an invitation with the connection details for the call.

The test should be used to check that:

  • The connection is stable and that both audio and video are of adequate quality.
  • The presentation of content is possible in both directions.
  • If applicable, access to multiple voice channels is available for simultaneous interpreting.

What requirements are in place for signing documents filed by email during a VICO?

For the requirements governing the signing of documents filed by email during a VICO, see Article 2 of the Decision of the President of the EPO dated 13 May 2020 concerning the filing of documents during telephone consultations and during interviews and oral proceedings held by video-conference.

What formats are accepted for email attachments (PDF only or other options such as photos from a smartphone)?

For accepted formats for email attachments, see Article 4 of the Decision of the President of the EPO dated 13 May 2020 concerning the filing of documents during telephone consultations and during interviews and oral proceedings held by VICO.

Is there a virtual meeting etiquette for oral proceedings by VICO?

In addition to following the same etiquette as for face-to-face oral proceedings, you should also:

  • Make use of the EPO’s advance test call service.
  • Ensure you will not be disturbed during the proceedings.
  • Connect on time so as not to delay the proceedings or miss important information.
  • Mute your microphone when you are not speaking.
  • Avoid speaking at the same time as another person.
  • Let the division know immediately if you experience any technical problems.
  • Make sure the room is properly lit. Either place your computer in front of a window or place a lamp behind your computer so that light is shed on your face. Avoid being lit from behind, e.g. with a window behind you.
  • Refrain from using a virtual background as these can cause image distortion.

Oral proceedings by VICO in examination

Is it possible to hold oral proceedings in examination using the Zoom platform?

As part of the pilot project for oral proceedings in opposition by VICO, the EPO is currently testing the Zoom platform for oral proceedings in opposition only. Zoom cannot be requested outside the framework of this pilot.

Can the applicant and/or the examining division cite “serious reasons” for holding the oral proceedings in person?

Yes. Where there are serious reasons for not holding the oral proceedings as a VICO, these can be given by either the examining division or the applicant. There must be a high degree of likelihood that these reasons will still apply on the day of the proceedings.

Can I request the conversion of physical oral proceedings to oral proceedings by VICO?

Yes. The oral proceedings will be converted from a physical meeting to a VICO provided that the examining division does not find serious reasons not to do so.

What is the legal basis for conducting oral proceedings by VICO?

Article 116(1) EPC does not mention the location or form of oral proceedings. It therefore does not require oral proceedings to be held in the physical presence of the applicant before the division. Rather, the form of the oral proceedings must ensure that applicants can present their arguments orally and that the division can communicate to the applicant the grounds and evidence on which it intends to base its decision. These requirements are fulfilled in the case of oral proceedings held by VICO since the division and the applicant can communicate with each other (T 1378/16, Reasons 1.3).

For exceptional cases in which an applicant’s rights under Articles 113(1) and 116 EPC may be violated by the holding of oral proceedings by VICO (for example, if an applicant or representative has a hearing impediment which prevents them from participating in oral proceedings by VICO), the Notice from the European Patent Office dated 1 April 2020 concerning oral proceedings and interviews to be held by videoconference states that the proceedings will be held on the premises of the EPO.

Is a legal basis in the EPC required for conducting oral proceedings by VICO without the applicant’s consent or contrary to their request?

The holding of oral proceedings by VICO is not excluded under Article 116 EPC or any other provision of the EPC. Rather, as with other administrative measures concerning oral proceedings, such as determining their location (T 1012/03, at 49), the form in which the proceedings are held is left to the organisational powers of the President of the EPO under Article 10(2)(a) EPC. The powers of the President explicitly include measures which affect the procedural rights of applicants, such as stipulating that the right to oral proceedings is to be exercised by means of a VICO. It follows that Article 10(2)(a) EPC together with the Notice from the European Patent Office dated 1 April 2020 concerning oral proceedings and interviews to be held by videoconference provide a sufficient legal basis for the introduction of “VICOs by default”.

I want to submit a request for oral proceedings to be held on the premises of the EPO. When should I submit the request?

Requests for oral proceedings to be held by way of exception on the premises of the EPO should be filed as soon as possible, preferably together with the request for oral proceedings. The granting of a request for oral proceedings to be held on the premises of the EPO will be at the discretion of the competent division. If the request is received after the summons to oral proceedings and cannot be allowed, the division will inform the applicant that the oral proceedings will take place by VICO as set out in the summons and will provide 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, no appealable decision will be issued on the matter. If a request for oral proceedings on the premises of the EPO is received after the summons to oral proceedings by VICO has been issued and the request is allowed, the applicant will be informed that oral proceedings will be held on the premises of the EPO as requested. In this case, the oral proceedings will be postponed until after 15 September 2021.

What happens if I cannot comply with the technical requirements or I am not able to install the necessary software? Would the proceedings then be held on the EPO’s premises?

Sweeping objections to the reliability of VICO technology or the non-availability of VICO equipment do not normally qualify as serious reasons for the proceedings to be held on EPO premises. Neither does the need to consider written evidence. If it really is not possible for a party to meet the technical requirements for participating in a VICO with the EPO, a request for oral proceedings to be held by way of exception on the premises of the EPO should be filed as early as possible together with detailed reasons. The granting of requests for oral proceedings to be held on the premises of the EPO is at the discretion of the competent division.

Oral proceedings by VICO in opposition (pilot)

Which videoconferencing tool will be used for holding oral proceedings in opposition?

In view of the positive experiences gained over the last few months with opposition oral proceedings by VICO in Zoom, the EPO currently considers Zoom to be the most appropriate platform. Zoom will therefore be used by default for oral proceedings in opposition.

Does the pilot include situations involving simultaneous interpreting?

Yes. Zoom supports simultaneous interpreting. Interpreters provide their own audio channels for the language they are interpreting into. Participants can then select the audio channel they require and can lower the volume of the original audio or mute it.

Note that the interpreting feature is currently not supported on the Zoom web client.

How can I ensure the interpreters are able to work in the best possible way?

Please use a high-quality audio device, namely a USB headset with integrated microphone or a USB microphone (clip-on or stand-alone) with echo-cancelling function.

Please DO NOT USE:

Microphones built into a PC, wireless headsets connected to the computer via Bluetooth, phone earbuds (even if wired) or standard VICO room equipment with array microphones. None of these perform adequately for remote interpreting. They do not cover the frequency range of 125 Hz to 15000 Hz that simultaneous interpreters need to listen and speak at the same time; see ISO/PAS standard 24019.

Note that if two or more people are physically present in the same room and intend to speak during the proceedings, they MUST avoid echoes and MUST each have their own headset/microphone and camera. Preferably they should remove their mask while speaking.

What if the other party files documents and I don’t receive them?

The division shares all documents with all parties. It is the responsibility of the chair to ensure that all parties are in possession of the latest version of the documents.

How can I be sure that the other parties are listening to the proceedings?

The other parties do not have to listen if they do not want to. What is important is to ensure that they are able to listen if they so wish.

What if one of the other parties files documents and I don’t receive them?

During VICOs, parties wishing to submit documents must send them to the email address indicated by the opposition division. The opposition division will then email the documents to the other parties while the VICO is in progress. It is the responsibility of the chair to ensure that all parties are in possession of the latest version of the documents.

Please note that emails from EPO addresses can sometimes end up in your spam folder.

How can I be sure that my details will be kept confidential?

The personal data of the parties are processed in accordance with the Guidelines for the protection of personal data in the European Patent Office (see https://www.epo.org/about-us/office/data-protection-and-privacy.html).

The EPO will keep connection details as communicated by the parties as non-public information and these will not be exchanged through the chat.

Can I use the chat box during oral proceedings?

The chat box is meant to be used for short, general messages such as “I need a break” or “I have connection issues”. It should not be used for sharing content relating to substantive issues. Since the other participants can see what you write, you should also refrain from entering any sensitive data (e.g. contact details) in the chat box.

Please note that, depending on the technology you use, the full functionality of the chat box may not be available.

What should I do if I think that the division didn’t or couldn’t listen to my arguments?

As in oral proceedings where the participants are physically present, you should bring this to the attention of the division.

What will be the effect of oral proceedings by VICO in the long term? Shouldn’t this be evaluated first?

The EPO is running a pilot to see how well the concept works in opposition oral proceedings (see the Progress report on oral proceedings by VICO published on 10 November 2020). A full assessment of the results will be made at the end of the pilot. The pilot will be closely monitored to ensure that all parties have the opportunity to present their case, as is the situation in oral proceedings where the participants are physically present. Participants are encouraged to provide feedback at the end of each VICO.

Are there any restrictions regarding the physical location of the applicants/parties when they connect to a VICO?

The EPC does not require the applicant/parties to the proceedings to be physically in one of the member states in order to participate in oral proceedings by VICO.

Do the tools support the possibility of having more than one representative or technical expert present at the proceedings?

Yes, the tools support the possibility of having more than one representative or technical expert present at the proceedings. Parties, their representatives and any persons accompanying the parties or representatives may connect in a distributed manner, i.e. from different locations, on condition that the number of additional participants does not impair the efficient conduct of the proceedings or the stability of the VICO connection. If a party having more than one representative or technical expert intends to connect in a distributed manner, this should be indicated as early as possible.

Will the EPO implement a system which allows (technically and procedurally) the parties to have confidential discussions during the breaks?

If individuals belonging to a party decide to connect from different locations, they should agree beforehand on means for confidential discussions.

As the host (the chair) has access to any virtual deliberation rooms, the EPO will not set up any virtual deliberation rooms for the parties. If necessary, the parties should organise their own virtual deliberation rooms.

What measures are in place to counter difficulties with submissions?

According to the Decision of the President of the EPO dated 13 May 2020 (OJ EPO 2020, A71), amended patent documents must be filed as attachments in PDF format and must comply with the WIPO Standard for Filing and Processing in Electronic Form (Annex F).

Where an attachment containing amended patent documents is not in PDF format, does not comply with the WIPO Standard for Filing and Processing in Electronic Form (Annex F) or is illegible or incomplete, the EPO will inform the party immediately. Where the deficiencies cannot be remedied during the VICO, the document or the part thereof that is illegible or incomplete will be deemed not to have been received.

Other attachments may be sent in any format which can be opened by the EPO and which can be reproduced in a legible form. Otherwise they will be deemed not to have been received.

If an attachment is infected with a computer virus or contains other malicious software, it will be deemed to be illegible. The EPO is not obliged to receive, open or process any such attachment.

Is the agreement of all the parties required in order to hold oral proceedings by VICO?

In order to guarantee the timeliness in opposition which is critical for access to justice, the agreement of all the parties to hold oral proceedings in opposition proceedings by VICO will no longer be required for oral proceedings that are scheduled to take place on or after 4 January 2021 (see the Decision of the President of the EPO dated 10 November 2020). Where oral proceedings have been requested or are considered expedient by the opposition division, they will normally be held by VICO.

Is it possible to request oral proceedings on the premises of the EPO?

Oral proceedings may be held on the premises of the EPO, either at the request of a party or at the instigation of the opposition division, in exceptional cases only and only if there are serious reasons for not holding them by VICO.

Examples of serious reasons for not holding the oral proceedings by VICO include reasons relating to a participant as an individual (e.g. a proven visual impairment that would prevent a representative from following the oral proceedings on screen) and reasons relating 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, to the extent that this is possible in accordance with the applicable provisions). Sweeping objections to the reliability of VICO technology or the non-availability of VICO equipment do not normally qualify as serious reasons in this regard.

Requests for oral proceedings to be held by way of exception on the premises of the EPO should be filed as soon as possible, preferably together with the request for oral proceedings. If medical certificates are provided, they will be excluded from file inspection in accordance with the Decision of the President of the European Patent Office dated 12 July 2007 concerning documents excluded from file inspection (see Special edition 3, OJ EPO 2007, J.3). The granting of a request for oral proceedings to be held on the premises of the EPO will be at the discretion of the division in question.

If a request to hold oral proceedings on the premises of the European Patent Office is refused, the parties will be informed of the reasons. Such refusals are not separately appealable.

If a request for oral proceedings on the premises of the EPO is allowable and is received after the summons to oral proceedings by VICO has been issued, the parties will be informed that oral proceedings will be held on the premises of the EPO as requested. In such cases, the oral proceedings will be postponed until after 15 September 2021.

Does the EPO plan to introduce mixed-mode oral proceedings in which some parties are present and others join via VICO?

Mixed-mode oral proceedings require the presence of at least one party to the proceedings on the premises of the EPO. In view of the situation with coronavirus (COVID-19), oral proceedings currently cannot be held on the premises of the EPO.

How can members of the public attend oral proceedings held by VICO?

For the moment members of the public can observe oral proceedings by requesting connection details from the EPO and registering to participate in the VICO.

Requests should be submitted via email to the EPO at support@epo.org at least three working days prior to the date indicated in the summons to the oral proceedings. The requirements for such requests and the conditions for remote attendance of oral proceedings by VICO are published on the EPO website (see https://www.epo.org/applying/online-services/proceedings/public-access.html).

Members of the public attending oral proceedings by VICO should identify themselves as such by entering a user name starting with PUBLIC after launching the VICO platform.

Is it possible to prevent members of the public from interrupting or interfering with the proceedings?

The participation of members of the public is restricted to listening to the audio and watching the images transmitted during the VICO. Members of the public may not switch on their microphone or camera unless asked to do so by the chair. They are not entitled to speak or otherwise become involved in the VICO, unless specifically invited to do so by the chair.

Any breach of these conditions may result in the exclusion of the member of the public from the oral proceedings. Where the chair finds that the above conditions have been/are being breached in a manner that would compromise the efficient conduct of the oral proceedings or adversely affect the rights of the other participants to the oral proceedings in an undue manner, or if other serious reasons so demand, they may ask the member of the public to leave the VICO and end the connection.

The pilot will explore the technical possibilities available for ensuring that members of the public are not able to interfere with the proceedings. As in oral proceedings where the participants are physically present, it is the responsibility of the chair to ensure the proper conduct of the proceedings.

How will members of the public be prevented from recording oral proceedings?

At oral proceedings under Article 116 EPC, no persons other than EPO employees are allowed to introduce any kind of sound recording device into the room in which the proceedings are being held (see Notice of the Vice-Presidents Directorates-General 2 and 3 dated 25 February 1986, OJ EPO 1986, 63). The same applies to video recordings (see point 8 of the Notice from the EPO dated 1 April 2020 concerning oral proceedings and interviews to be held by videoconference, which prohibits the making or retransmission of any image or sound recording of any part of the proceedings). Both the parties and the public are expected to abide by these rules. The prohibition implies that there is no lawful way to record the oral proceedings and as such no use may be made of any such recording.

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