The European patent opposition procedure is a fundamental tool to balance the interests of patent holders and third parties.
Most of these procedures and their subsequent appeals, when there happen to be any, end with oral proceedings in which the patentee and the opponents present their arguments before the opposition division or the corresponding board of appeal, respectively. Less commonly, some applications under examination also end up being discussed in oral proceedings in which the applicant and the examination division participate.
Given the situation of the pandemic created by COVID-19 and the consequent restrictions on mobility and social distancing, the president of the EPO announced last April that examination oral proceedings would take place regularly by videoconference (VICO). Although this possibility has existed since 1998, it was practically not used; in 2019, for example, only 13% of the examination oral proceedings were not in person/face-to-face.
On the other hand, in the case of oppositions at the beginning of the pandemic, a pilot program was announced to open the possibility of conducting oral proceedings by VICO with the agreement of all parties.
Over the last few months, the EPO has introduced improvements in the technical infrastructure and has incorporated, for example, the Zoom platform, in addition to Skype for Business (SfB), to be able to carry out cases involving multiple opponents and/or requiring simultaneous interpretation.
However, according to an EPO report, after six months of implementation, only 230 opposition cases of oral proceedings have been held by VICO, representing 4% of all pending opposition cases. Thus, as of September 2020, unsolved cases had increased considerably compared to the previous year (24% more in Healthcare, Biotechnology and Chemistry (HBC), 15% more in Mobility and Mechatronics (M&M), and 7% more in Information and Communications Technology (ICT).
Due to the second wave of the pandemic, on November 10th the EPO announced the postponement of face-to-face oral proceedings until September 15th, 2021 along with the extension of the pilot project until the same date.
According to the forecasts of the EPO, to recover the situation that existed before the pandemic, it would be necessary to resolve around 360 opposition cases every month until the end of 2022. For this reason, the EPO has announced that as of January 4th, 2021 and throughout the duration of the pilot project the consent of all parties to carry out the opposition oral proceedings will no longer be required.
In the case of appeal procedures, from May to October 2020, 120 oral proceedings by VICO have been held. Although for the time being the consent of the parties will still be required to carry out oral proceedings by VICO, it seems that the situation may change in the near future. In this regard, the EPO has opened a user consultation until November 27th to modify the Rules of Procedure of the boards of Appeal (RPBA) to allow the attendance of the oral proceedings by VICO of any of the parties, representatives, or even of any of the members of the board of appeal chamber, which would open the possibility of hybrid oral proceedings.
More information available at the following link.