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 continue to be used as the default until the end of September 2021.

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.

With effect from 1 October 2021, the standard platform for oral proceedings in examination will be Zoom, and SfB will normally no longer be offered as of that date.

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

For oral proceedings held by Zoom, 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?

No. Until the end of September 2021, by default, Skype for Business (SfB) will be used for oral proceedings in examination and Zoom for oral proceedings in opposition.

On 1 October 2021, Zoom will also become the standard platform for oral proceedings in examination, at which point SfB will normally no longer be offered.

Has the EPO considered recent criticism of the Zoom platform relating to a lack of privacy, transparency and security?

The EPO has taken all possible steps to ensure the protection of personal data and safeguard the confidentiality, integrity and availability of information.

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 this EPO data protection statement, where you can find an explicit description of what data may be processed by Zoom, and for which purpose.

The recent criticism about the Zoom platform's security is based on versions of the Zoom software released from 2016 until early 2020. From April 2020, however, Zoom worked on improving security and addressed all of the essential concerns.

For more information on the processing of personal data by Zoom or its subcontractors, see the company's 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.

Does the EPO consider it safe to install the Zoom software?

In view of the significant security improvements in the Zoom platform, the EPO has approved the use of the software, within the controlled environment that is applied to any other commercial software. The EPO tests new versions before roll-out within a specific vulnerability management process, combined with a number of other security elements that are present in the EPO environment. The EPO is committed to a continual improvement cycle for its information security practices, as shown in the Strategic Plan 2023.

It remains important, of course, that users follow the best practices with regard to updating and patching all user software (including Zoom), and that tool selection is combined with the implementation of other technical security measures on the client side (firewalls, antivirus software, etc.).

Zoom VICOs in opposition proceedings are not end-to-end encrypted (E2EE). Does this pose a risk?

Zoom provides what the company calls "advanced encryption", which encrypts the network communication between each Zoom client and the Zoom servers. Zoom itself is able to decrypt the traffic at its servers, e.g. to provide recordings of the videoconference. This level of security is comparable to that offered by similar platforms such as Microsoft Teams or Skype. In all of these cases, eavesdropping by any third party is prevented by the encryption.

Since November 2020, Zoom has provided genuine end-to-end encryption where only the participants in the VICO can decrypt the video and audio streams, and eavesdropping even by the software provider is prevented. A version with E2EE was rolled out at the EPO in February 2021. However, E2EE is currently not compatible with some of Zoom's advanced features, such as breakout rooms, that are used for oral proceedings in opposition.

Will installing Zoom compromise the security of my computer?

At present (February 2021), there are no known critical vulnerabilities relating to the Zoom platform. The EPO considers it safe to install Zoom.

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.

For accompanying persons, including those who will be making oral submissions, it is sufficient that their identity is confirmed by the relevant representative.

Showing EPO badges to the camera or submitting copies of identity documents via EPO online filing options is encouraged to save time during the ID check at the beginning of the proceedings.

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 requesting a break.

Is there a limit on the number or length of breaks?

Breaks are taken for deliberations of the division or upon request of any of the parties. In addition, there will normally be a lunch break. If longer or more frequent breaks are needed, please ask the chair.

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. Preferably, the participants should stay connected to the meeting. However, they may leave the meeting and reconnect afterwards.

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

At present, the EPO does not set up any virtual deliberation rooms for the parties. If necessary, parties should organise their own parallel VICO.

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 more stable than a wireless connection.

Camera

We recommend using a good-quality webcam (HD 720p or above). Most importantly, each person should have their own camera. If, however, several people are using the same camera, that camera should have a pan/tilt/zoom function, so that it automatically zooms in on the person speaking, thus enabling the interpreters to see their facial expressions.

Audio

Please use a high-quality microphone, namely a USB headset with integrated microphone or a unidirectional USB microphone (clip-on or stand-alone) with a frequency response of at least 125 Hz to 15 000 Hz and an echo-cancelling function.

Please use audio devices that are connected to the computer by USB cable. Devices connected to the computer using Bluetooth are only acceptable if an additional Bluetooth USB connector is used, and if the participant is alone in the room to avoid interference.

For VICOs involving interpreting it is not recommended to use microphones built into a PC, wireless headsets connected to the computer via its built-in Bluetooth, phone earbuds (even if wired) or standard VICO room equipment with omnidirectional microphones, which are often shared. None of these perform adequately for remote interpreting. They do not cover the frequency range of 125 Hz to 15 000 Hz that simultaneous interpreters need in order to be able to listen and speak at the same time, as stipulated in ISO/PAS standard 24019.

If two or more people who are physically present in the same room intend to speak during the proceedings, they should avoid echoes and each have their own individual headset/microphone and camera. If feasible, they should take off their mask while speaking.

Always use “join with computer audio” when joining a Zoom meeting and check that you have selected the correct device in the Zoom audio settings.

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?

If you participate in a VICO with remote simultaneous interpreting, please use a high-quality microphone, namely a USB headset with integrated microphone or a unidirectional USB microphone (clip-on or stand-alone) with echo-cancelling function, and make sure you speak clearly and at a reasonable pace. Please do not use microphones built into a computer, wireless headsets connected to the computer via its built-in Bluetooth, phone earbuds (even if wired) or standard VICO room equipment with omnidirectional microphones, which are often shared. None of these perform adequately for remote interpreting because they do not reproduce the frequency range of 125 Hz to 15000 Hz that simultaneous interpreters need in order to be able to listen and speak at the same time, as stipulated in ISO/PAS standard 24019: Simultaneous interpreting delivery platforms - Requirements and recommendations.

If two or more people are physically present in the same room and intend to speak during the proceedings, they should avoid echoes and each have their own individual headset/microphone and camera. If you wear a mask while speaking this can make interpreting difficult, if not impossible at times, so stay physically distanced so you can remove your mask when speaking. Omnidirectional microphones or microphones built into a computer may capture multiple speakers as well as ambient sounds such as mouse clicks and pages being turned, all of which can make it difficult for the interpreters to hear what is being said.

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 do not need any special hardware to join a VICO.

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 need to go to an alternative location nearby where there is a suitable internet connection.

Parties who are attending oral proceedings for the first time, or participating in oral proceedings with simultaneous interpretation for the first time, or who have changed their technical set-up since the last time are strongly advised to arrange a test call before the date of the oral proceedings. This should be done in good time (at least ten working days, ideally two to three weeks beforehand), but not more than a month in advance, because of potential software updates. Needless to say, the test call should be carried out from the location and with the equipment that will actually be used by the party during the proceedings.

To arrange a test call, contact the EPO ServiceLine (telephone +31 70 340 4444 or email serviceline@epo.org). They will schedule a 30-minute test session (available Mondays to Fridays between 08.30 and 18.00 CET) and send you an invitation with the connection details for the call.

The test will be an opportunity to check that:

  • The VICO application works properly
  • The connection is stable and both audio and video are of adequate quality.
  • It is possible for both sides to present content.
  • If applicable, access to multiple voice channels is available for simultaneous interpreting.

Postponement of oral proceedings on the ground of the technical connection may be considered only where all reasonable efforts have been made to meet the technical requirements and a test call with all the parties demonstrates that a suitably reliable connection cannot be established.

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 videoconference.

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 backgrounds that create disturbances.
  • Make sure you use a high-quality USB microphone, especially for oral proceedings involving interpretation

Should I activate the “original sound” option in Zoom to improve my audio quality?

The audio part of the technical guidelines gives basic audio recommendations to allow simultaneous interpretation. However, if you wish to be heard with the best possible audio quality then the Zoom hi-fi and original sound function may be of interest to you.

Here are some tips on how to activate the Zoom hi-fi mode. It is important to be aware that the hi-fi mode will only work if you are using an external USB microphone (a unidirectional stand-alone microphone or a clip-on microphone in tandem with the appropriate sound card) or a fully professional headset connected to an outboard sound card that will not filter your voice in any way.

When using Zoom in hi-fi mode, please make sure that you use headphones as external speakers will generate feedback.

Download the latest version of the Zoom App on your PC or laptop (this will not work on a mobile device).

Go to settings – Audio

  • activate “High fidelity music mode”
  • deactivate “Echo cancellation”
  • deactivate “Automatically adjust microphone volume” (then manually adjust as required during sound checks)
  • activate “Stereo audio”

If your OS is Microsoft windows, click on the “advanced” button and set “Signal processing by Windows audio device drivers” to OFF.

Please be aware that with the original sound activated, ambient or background noise suppression is deactivated, so ensure that you mute your microphone when typing, going through your papers or having something to drink.

Oral proceedings by VICO in examination

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

Until the end of September 2021, Skype for Business (SfB) will be used by default for oral proceedings in examination, and Zoom for oral proceedings in opposition. However, on 1 October 2021, Zoom will also become the standard platform for oral proceedings in examination, at which point SfB will normally no longer be offered.

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.

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”.

Referral G 1/21 ("Oral proceedings by videoconference") is pending before the Enlarged Board of Appeal. The question referred seeks to clarify whether the conduct of oral proceedings in the form of a videoconference is compatible with the right to oral proceedings as enshrined in Article 116(1) EPC if not all of the parties to the proceedings have given their consent to the conduct of oral proceedings in the form of a videoconference. Reference is made to referring decision T 1807/15.

The President of the EPO has decided  that in order to guarantee access to justice and ensure the functioning of the EPO, oral proceedings before examining and opposition divisions will continue to be held by videoconference as under current practice, i.e. without requiring the agreement of the parties.

This applies until the Enlarged Board of Appeal has announced its decision (see https://www.epo.org/news-events/news/2021/20210324a.html).

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 31 January 2022.

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. 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)

Where can I find a list of upcoming oral proceedings in opposition?

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.

Can witnesses be heard or other evidence be taken via VICO?

By decision dated 15 December 2020, the Administrative Council decided to amend Rules 117 and 118 EPC to allow evidence to be taken by videoconference (VICO) in proceedings before the EPO. The amendment took effect as of 1 January 2021. Evidence can be taken by videoconference regardless of whether the oral proceedings are held by VICO or on the EPO premises. For further information, see the Administrative Council decision (OJ EPO 2020, A132) and 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).

Can I use a virtual background?

The use of virtual backgrounds can create a more professional environment, but has  drawbacks. Virtual backgrounds can create disturbances (e.g. part of your face may be obscured when you move, or it may not be possible to show documents to the camera). Virtual backgrounds also can make interpretation more difficult. If visual disturbances obstruct the proper conduct of the oral proceedings, the participants and/or members of the division can be asked to disable their virtual backgrounds.

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 personal data and connection details will be kept confidential?

The personal data of the parties is 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 or orally.

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?

In consideration of our user needs regarding legal certainty and timely access to justice, and of the goals of the Strategic Plan, a pilot project for holding oral proceedings before opposition divisions by videoconference (VICO) was launched by the Decision of the President of the EPO of 14 April 2020.

A progress report, published in November 2020, reviews the first six months of the pilot and explains the achievements since April 2020 and the trends in demand and includes recommendations for the next steps of the pilot.

Towards the end of the pilot, a further report will be prepared reviewing progress and the valuable experience gained in the use of VICOs in opposition proceedings by proprietors, opponents, their legal representatives and the EPO. The report will also consider the role that a VICO option might continue to play in opposition after the COVID-19 crisis is over.

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. To assure good audio quality, it is preferred that parties, their representatives and any persons accompanying the parties or representatives connect in a distributed manner, i.e. from different locations.

If two or more people who are physically present in the same room intend to speak during the proceedings, they should avoid echoes and each/all have their own individual headsets/microphones and cameras. If you wear a mask while speaking this can make interpreting difficult, if not impossible at times, so stay physically distanced so you can remove your mask when speaking. Array microphones or built-in microphones from a PC which capture multiple speakers also capture ambient sounds such as mouse clicks and pages being turned, all of which can make it difficult for the interpreters to hear what is being said. For more information, see ISO/PAS standard 24019: Simultaneous interpreting delivery platforms – Requirements and recommendations.

Each person should have their own camera. Alternatively, if multiple persons are present in a room with a single camera, the camera should automatically zoom in on the person speaking to help the interpreters see their facial expressions.

To help the division identify people at the beginning of a VICO and distinguish parties from members of the public, it is recommended that you enter a Zoom username giving an indication of the party you are representing before joining the meeting (e.g. PROP- Mr/Ms XYZ for the representative of the proprietor). The division will then be able to identify who is waiting in the virtual lobby.

Can accompanying persons join the VICO for only a part of the oral proceedings, or are they required to be continually present?

Accompanying persons speaking during the oral proceedings should preferably be present at the beginning of the proceedings. If this is not possible, the representative should inform the division as soon as possible that an accompanying person will join the VICO later.

Accompanying persons not speaking during the oral proceedings may attend a part of the VICO as long as they do not disrupt the proceedings. If they are not present at the beginning of the proceedings, they will be admitted at the latest during a break.

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.

At present, the EPO does not set up any virtual deliberation rooms for the parties. If necessary, parties should organise their own parallel VICO.

What measures are in place to counter difficulties with submissions?

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.

Further information can be found in the Decision of the President of the EPO dated 13 May 2020 (OJ EPO 2020, A71).

How will the EPO deal with oral proceedings that cannot be completed within a single working day?

In such cases, the oral proceedings will be adjourned. Normally, new summons and minutes of the oral proceedings will be issued. If all parties agree and if the particular circumstances of the case permit so (e.g. if no simultaneous interpreting is required), oral proceedings may be adjourned to a date in the near future (e.g. the next day) without new summons and minutes of the oral proceedings being sent.

Oral proceedings held by videoconference might take longer than face to face oral proceedings. Will the EPO take this into account when scheduling oral proceedings?

If the division considers that the oral proceedings might take longer, it will summon for two or more consecutive days.

Can handwritten amendments be filed during oral proceedings by VICO?

Guidelines E-III, 8.7.3, apply to oral proceedings by VICO. The proprietor can submit patent documents with handwritten amendments. These documents must be filed as PDF attachments and comply with the WIPO Standard for Filing and Processing in Electronic Form (Annex F).

If the interlocutory decision of the opposition division is based on documents which do not comply with Rule 49(8) EPC, i.e. which contain handwritten amendments, the opposition division will invite the proprietor in the communication under Rule 82(2) EPC to file a formally compliant version of the amended text. The invitation will specify the formally deficient amended paragraphs and/or claims for which replacement paragraphs and/or claims need to be filed.

Instead of submitting handwritten amendments – which require scanning – you may submit typed amendments using the text available from the European Publication Server. Find out more in this tutorial.

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.

Referral G 1/21 ("Oral proceedings by videoconference") is pending before the Enlarged Board of Appeal. The question referred seeks to clarify whether the conduct of oral proceedings in the form of a videoconference is compatible with the right to oral proceedings as enshrined in Article 116(1) EPC if not all of the parties to the proceedings have given their consent to the conduct of oral proceedings in the form of a videoconference. Reference is made to referring decision T 1807/15.

The President of the EPO has decided  that in order to guarantee access to justice and ensure the functioning of the EPO, oral proceedings before examining and opposition divisions will continue to be held by videoconference as under current practice, i.e. without requiring the agreement of the parties.

This applies until the Enlarged Board of Appeal has announced its decision (see https://www.epo.org/news-events/news/2021/20210324a.html).

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

By way of exception, 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, if there are serious reasons for not holding them by VICO. In such cases, in accordance with the announcement that no in-person oral proceedings will be held in opposition until 31 January 2022 (previously until 15 September 2021), the oral proceedings will be postponed until after this date.

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 OJ EPO Special edition 3, 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. Under Article 106(2) EPC 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 31 January 2022.

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

In view of COVID-19 , oral proceedings requiring the presence of at least one party to the proceedings on the premises of the EPO are currently not permitted. The possible forms of oral proceedings will be considered towards the end of the pilot.

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 username starting with PUBLIC when launching the VICO platform and before entering the conference.

Can members of the public remain anonymous during oral proceedings before opposition divisions held by VICO?

Members of the public will not be asked to introduce themselves, and the opposition division will not check their ID documents. However, if so requested by the chair, they must temporarily switch on their camera to allow the videoconference participants to see who they are.

The name under which you wish to appear at the beginning of the Zoom VICO should be entered before joining the conference. It is helpful if you identify yourself as "PUBLIC". Once participants have entered the Zoom VICO, only the members of the division can rename them. If you have not entered the conference with the name "PUBLIC" you may be renamed thus before the start of the oral proceedings.

 

Will documents submitted during the oral proceedings be forwarded to members of the public?

The opposition division does not forward copies of documents submitted during the oral proceedings to members of the public.

Are members of the public attending VICO oral proceedings free to join only part of the proceedings, or are they required to be continually present?

Members of the public may attend part of a VICO. When entering or leaving the VICO they should make every effort not to disrupt the oral proceedings. If they are not present at the beginning of the proceedings, they will be admitted at the latest during a break.

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.

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 6 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.

Am I allowed to share the connection details provided by the EPO with my client or any third party?

If your client wishes to attend the oral proceedings as an accompanying person, you may share the connection details with them. Note that the opposition division must be informed in advance of the attendance of your client as an accompanying person. See Guidelines E-III, 8.5, for information on requests for submissions by an accompanying person.

A request to attend oral proceedings as a member of the public must be filed by or on behalf of the person concerned. The connection details provided by the EPO for attending oral proceedings as a member of the public are intended for the sole use of the requester and must not be shared with anyone not mentioned in the request. The requester accepts full responsibility for any consequences arising from the unauthorised sharing of the connection details.

Further information about access to oral proceedings by videoconference before opposition divisions

Will the EPO collect feedback on oral proceedings by VICO?

The opposition division will send the parties a link to a short feedback form. The link will be provided in the email providing the connection details to the parties or communicated at the beginning of the oral proceedings.

Individual feedback will be handled by the EPO Quality department in order to improve the VICO oral proceedings experience. The feedback will be treated confidentially: it will not be made public or shared with the opposition division, nor will any of the comments form part of the opposition file or proceedings.

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