In addition to the Pilot project, the EPO has made video conferencing mandatory in examination proceedings and most hearings before the Boards of Appeal are also held remotely, at least at the time of writing.
According to the report, most respondents gave positive feedback on virtual hearings, though some concerns were expressed, like “difficulties in making one’s case or reading the body language of the other parties and/or members of the division, and the risk of technical problems or disruption”.
Moreover, the respondents mentioned some advantages and new opportunities, such as reduced travel time/costs, reduced environmental impact and easier accessibility for applicants, inventors, trainees, competitors and the public. It is worth noting that most European applications and patents belong to non-European owners.
Decision G 1/21 of the Enlarged Board of Appeals, issued in July 2021, confirmed that mandatory remote hearings are compatible with the European Patent Convention (EPC), though it added that in-person hearings should be the default option.
What will happen when the Covid emergency has ended?
In theory, the EPO might return to the status quo ante or, conversely, decide that all hearings will be held by ViCo, despite decision G 1/21.
On the other hand, if the choice were left to the parties, then further issues would arise: for example, what would happen if a party wanted to attend remotely an in-person hearing, or vice versa? Would the EPO allow “mixed hearings” or just deny the request of one party? And what about the acquired right of patentees and third parties to attend hearings remotely?
Furthermore, is the perception of the body language so important as to prevail over the manifest advantages of remote hearings and, more generally, do patent validity proceedings really need hearings where all arguments are discussed orally for one or more days?
Next steps
Since these questions also concern other jurisdictions, which have different rules and practices with respect to hearings in patent disputes, user associations, such as FICPI, could study the current situation to propose solutions improving and harmonising these practices before the Covid emergency is over; possibly soon. A break-out session at the upcoming FICPI World Congress 2022, which will take place in Cannes, France from 25-29 September, will look at how the courts, EPO and other offices have adopted new technology and modes of conducting hearings, and how the IP professional should adapt their practice to ensure they continue to do the best for their clients.
Antonio Pizzoli is a Chair of FICPI's Study & Work Committee which focuses on European Patents, known as CET 4, whose group members regularly meet senior officials at the European Commission and the European Patent Office.
FICPI’s view and involvement
FICPI is a global community, built on trusted relationships, which strengthens the practice of the independent IP attorney. The FICPI community is driven by a strong shared interest among likeminded people to promote common solutions and advocacy for private practice.