Many of us are familiar with conducting business by video conference. It provides an extra option for talking to remote clients that is much less expensive and time-consuming than an in-person meeting, but can result in a better personal connection than a phone meeting.
The EPO, recognising these advantages, has for some years allowed oral proceedings (hearings) to be held by video conference. However, recently released EPO decision T 2068/14 has emphasised the discretion that the EPO Examining Divisions (and Boards of Appeal) possess when it comes to allowing or refusing video conferencing for oral proceedings. Video conferencing with the EPO can never be considered a foregone conclusion.
In T 2068/14, the Board of Appeal emphasised that, although an applicant has the right to be heard in oral proceedings, the applicant has no right for these to be in a form of its choice (eg by video conference rather than in-person).
Video conferencing at the Examining Division
The applicant in this case had been summoned to oral proceedings as the final stage in examination of a patent application. The applicant’s representative requested that Proceedings be held by video conference in accordance with the EPO Guidelines for Examination, which say that they “normally” allow video conferencing for ex parte proceedings unless there are specific reasons for refusing.
The request for a video conference was refused by the Examining Division on the grounds that the subject-matter to be discussed was too complex to be discussed by video conference and that the objections to the application “were such that there appeared to be no possibility of overcoming them by a simple exchange of arguments”.
No one representing the applicant attended the oral proceedings. In EPO procedure, if the applicant is not represented at oral proceedings, the oral proceedings still go ahead, and a decision is taken on the papers previously filed. In this case, the applicant’s patent application was refused.
At appeal, the applicant argued that it was a substantial procedural violation for the EPO to refuse video conferencing, since the high costs of sending a representative to the EPO in person may be beyond an applicant’s budget, particularly when the representative is travelling from the further reaches of Europe. However, the Board of Appeal emphasised that although an applicant has a right to be heard at oral proceedings, there is no requirement that the costs of doing so be affordable to the applicant. The refusal of video conferencing was not a procedural violation, since the applicant or their representative could have chosen to attend the oral proceedings in person.
Video-conferencing at Appeal
Not content with requesting (and being refused) video-conferencing at oral proceedings at the Examining Division, the applicant also requested that the resulting appeal be rescheduled at short notice so that it could be held by video conference.
In contrast to the situation at the Examining Division, in which video conferencing is routinely though not always granted, the Boards of Appeal have previously pushed back on requests for video conferencing. In part, this is because proceedings before the Boards of Appeal must be held in public.
The Board of Appeal did not agree with the applicant’s request to re-schedule, since it was received two days before oral proceedings were due to take place. The Rules of Procedure of the Boards of Appeal do “exceptionally” allow for rescheduling, but only when a reasoned request is filed as far in advance as possible. Furthermore, the applicant did not give any reasons for the rescheduling beyond those of wanting video conferencing. The rescheduling (and video conferencing) were therefore refused.
This decision makes it clear that, in principle, it would be possible for oral proceedings before the Boards of Appeal to be held by video-conferencing, but there would have to be a very good reason: “The onus is on the appellant to persuade the Board that conventional oral proceedings are not appropriate.”
Although T 2068/14 appears to have reinforced rather than change current practice, it does raise some points that are important to remember. If applicants request video conferencing for oral proceedings before the Examining Division, there should be a reasonable chance of getting them, but they should be prepared for what they will do if their request is refused.
On the other hand, the chances of video conferencing at the Boards of Appeal still appear to be very low. Arguments would need to be exceptionally strong and filed early.