Opposition against EPO plan to hold oral proceedings before examining divisions by videoconference
April 29, 2020
The decision of the European Patent Office to start holding videoconferences as the standard way of conducting oral proceedings in examination and opposition proceedings is facing heavy criticism. There has been no testing, no consultation, the EPO doesn’t have the facilities, it may be discriminatory and in violation of Article 113(1) EPC, according to the epi, among others. The EPO’s Central Staff Committee thinks the “measures presently foreseen should be immediately halted”.
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Article 1 - Oral proceedings by videoconference before examining divisions
(1) Oral proceedings before examining divisions are to be held by videoconference.
(2) Notwithstanding paragraph 1, oral proceedings may be held on the premises of the European Patent Office, either at the request of the applicant or at the instigation of the examining division if there are serious reasons against holding the oral proceedings by videoconference such as, in particular, the need to take evidence directly. If a request to hold oral proceedings on the premises of the European Patent Office is refused, the applicant will be informed of the reasons; such a refusal is not separately appealable. (…)
Currently, less than 10 percent of examination oral proceedings are held by videoconference. Campinos announced the change in a letter to the Institute of Professional Representatives before the EPO (epi) late March:
“Even when looking beyond the current situation, I firmly believe that video-conferencing can contribute to a more efficient, modern and sustainable European patent system, in line with the goals of the EPO’s Strategic Plan 2023. (…) The EPO would now like to go a step further and establish video-conferencing as the standard way of conducting oral proceedings in examination, and to allow this in opposition upon request of a party or at the instigation of the division.”
epi
In a meeting, 31 March, of the Standing Advisory Council to the European Patent Office (SACEPO) and epi representatives, the draft proposals were discussed. It failed to abate the epi’s concerns about videoconferencing.
“epi considers that such emergency measures should not be allowed to become permanent without much more extensive testing of any possible technical solution and also extensive consultation as to their long term effect, in particular on support given to users of the system (…). A first point here is that, despite the fact that a number of applicants request oral proceedings (OP) by video conference (VC), on many occasions the request has been denied, apparently because the Office does not have the facilities to do so.
It is pointed out that the use of VC relies on the internet. This could lead to discrimination against a party using a representative from a member state of district where the internet service is not fast and/or reliable. (…)
The present system used by the EPO appears to be deficient because only the speaker can be seen, thus denying the other party or parties the opportunity of seeing the reaction of any other persons or parties present. (…) It may not be appreciated by the Office that, where there is more than one person in the applicant’s party, there is a lot of interaction between the representative making the presentation and the other members of his or her party. (…) These discussions can be very useful as they can lead to a resolution of a problem, for instance to a claim amendment. (…) We are not aware of systems that would permit the applicant’s party to have this interaction in the VC organised by the Office. (…)
The situation for OP before an opposition division (OD) is even more complicated. Not only are there necessarily three parties involved, the OD, the Proprietor and the Opponent, there are often the additional problems of the presence of more than one opponent, providing translations, taking evidence and providing access to the public. (…)
It is also considered that there are very good reasons why having OP by VC without the agreement of the applicant or all the parties to opposition proceedings does not meet the requirements of Article 113 EPC. (…) There is nothing in Article 113 EPC that gives the Office the power to limit the way in which a party gives its comments. (…)
For all these reasons, it is epi’s view that OP before an OD should only be by way of VC if all the parties agree. (…) A draconian change should not be implemented overnight but should follow a process of development of a complete system which not only works for the Office but also properly supports the users and which has benefitted from extensive consultation with users.” (the letter of the epi can be found here)
Open letter
On 11 April, four representatives before the EPO of the Italian IP firm Bugnion sent an open letter to Campinos on the same issue, arguing the decision “appears to overlook a series of practical and legal aspects which could ultimately impair the applicants’ right to be heard enshrined in Article 113(1) EPC.” According to the authors, it could “negatively affect applicants and professional representatives residing in Contracting States that are at present most severely affected by the epidemic and where the national governments have imposed strict restrictions on the free circulation of people, in order to curb the spread of the contagion. (…) At present, due to the aforementioned restrictions and the resultant high number of people working from home, the quality and reliability of videoconferencing over the Internet in those Contracting States could not be sufficient to ensure that applicants and representatives could attend the oral proceedings in a reliable manner.”
They argue there are various other reasons why it could be in violation of Article 113(1) EPC if the choice for oral proceedings by videoconference is not left to the parties. For instance: “As rightly underlined for example under point 2.11 of the decision R 0003/10 of the Enlarged Board of Appeal, oral proceedings allow the organs of the Office and the parties to discuss issues, including controversial and perhaps crucial issues. (…) In this respect, it cannot be sufficiently underlined how effective can be, for users of the European patent system, a face-to-face discussion of technically or legally complicated issues, as they typically arise in examination proceedings, in the course of the up to now conventional oral proceedings on the premises of the European Patent Office, as compared to an oral discussion by videoconference.” (the letter is available here)
The epi has asked its members to share their experience, “good or bad, in order to provide anonymised feedback to the EPO and its President.”
Central Staff Committee
The Central Staff Committee (CSC) of the EPO is very outspoken about the announcement, in the middle of the coronapandemia, that videoconferencing will be the new standard: we’re being rushed into a change which is full of legal and technical pitfalls. In a letter published on the EPO’s internal pages half April, the CSC points out that many high and lower courts in the member states have suspended all oral proceedings which are not absolutely urgent. It “would make sense to align the Office with the practice as well as with emergency provisions of its host countries. This would also appear mandated by the Protocol on Privileges and Immunities.”
The CSC argues: “Holding oral proceedings as distributed videoconferences with the members of the division participating at different locations in the Office or at home is part of your initiative of generalising and making teleworking mandatory, which constitutes a fundamental change in the working conditions of an major part of staff. It must therefore be subject to statutory consultation with the COHSEC and the GCC in accordance with Articles 38(2) and 38a(3) ServRegs.
Since it has been decided to extend the new procedures for oral proceedings in examination beyond the current Corona crisis, in-depth consultation is necessary. The same applies to opposition oral proceedings for which this new procedure appears likewise here to stay.”
The CSC sees various legal issues: “Opposition oral proceedings are by law public proceedings, cf. Article 116(4) EPC. It is not at all clear how this is guaranteed if the hearing is conducted as a ViCo (see e.g. T1266/07, points 1.2 and 1.3). The preliminary guidance given in VP1’s announcement (...) states that if the division “receive[s] requests of public to attend opposition proceedings performed via ViCo” it should “contact [its] line manager”, presumably that of the first examiner. Aside from the fact that the line manager is not competent for interfering with the discretionary decisions of the Divisions, the public does not need to “request” attendance, or to announce it in advance. A possibility for the public to attend should therefore be guaranteed in all cases, regardless of any advance request. The guidance thus brings examiners into a conflict between the expectations of management and the requirements of the EPC.”
“A problem of breach of confidentiality might further arise if members of divisions were not able to adequately isolate themselves, especially during examination non-public OP’s and during deliberations.”
On the technical side there are issues as well, according to the CSC: “a yet unknown number of examiners cannot establish simultaneously both a Skypefor-Business connection and an EPO network connection via Pulse-VPN, as would be required for ViCo OPs, because the network hosts the application documents and the EPO email account. Only either connection works fine by itself.”
This leads the CSC to a very clear conclusion: let’s not do this. “At present there are no clear laws, no guidelines and no technical facilities to allow distributed oral proceedings in examination and opposition proceedings. In the latter case, even “non-distributed” ViCos with divisions on the Office premises would at present not rest on a solid legal basis.
The measures presently foreseen should be immediately halted and reviewed, also involving the Staff Representation.
In view of the additional strain on the examiner’s mental health, we can at present only advise divisions to judiciously choose, weighing all circumstances, whether to conduct oral proceedings by ViCo or rather to postpone them to a later date until circumstances for conducting them either as a classical ViCo from the Office premises or as “standard” proceedings in person are restored.”
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MaxDrei
Those running the EPO business are clearly disciples of the "Never let a Good Crisis Go to Waste" school of management thinking. Get in with a measure to cut costs and raise profit levels, regardless of any loss of product quality. Those running the EPO business (management, supervisory Board), it seems to me, have no appreciation of any importance in preserving the reputation of the EPO for the quality of its decisions on matters of fact and law. Any criticism of setting the VC as default will be waved away as the bleatings of self-interested patent attorney firms, thwarted in their efforts to hold on to high turnover and profit figures associated with in vivo oral proceedings. It's up to the critics to find lines of argument that are resistant to being fobbed off as mere self-interest. After all, the patents courts of England are now making heavy use of VC technology to keep patent litigation ticking along. Justice delayed is, of course, justice denied. it's just that these VC Hearings are not used for the cross-examination of vital witness testimony, for which the judge needs to see the witness and their interlocutor face-to-face. Who can give us examples of unscrupulous use of the VC to frustrate the over-riding objective of doing justice?
Attentive Observer
The hasty decision of the President of the EPO shows once more that the EPO is run by a bunch of would be managers who do not have the faintest idea about the actual work of an examiner and of a division, be it in in examination or in opposition. They decide as they claim to know best what is good for the EPO, its staff, and its users. One thing should not be forgotten, the President might take some decisions, but eventually it will be the Boards of appeal, and even the Enlarged board of appeal, to decide whether the interpretation of the EPC by the president is compatible with the letter and the spirit of the EPC. I take bets that a losing party will raise the problem of oral proceedings in form of videoconferences in first instance before a board. It is sure that the when the EPC was signed that neither Internet nor the digitalisation of our environment were conceivable. When the fathers of the EPC thought about oral proceedings, they only had face to face meetings in mind and not meetings in which parties were only present on a screen. After all, the right to be heard is best exemplified by oral proceedings when the parties sit in front the whole division or board. OP by videoconference could at a pinch be workable in examination. But one prerequisite is that the division members sit together and not in different locations. That is not what the fathers of the EPC had in mind when they decided upon oral proceedings, even in examination. There is a further aspect not to be neglected, not of technical nature but has to do with human psychology. A video conference works best when people have met face to face before. Oral proceedings in opposition might be feasible if there is only one opponent. As soon that there is more than one opponent, I fail to see how it can work. The necessary public character of oral proceedings in opposition has to be guaranteed. This is by no means the case with the present provisions. Simply stating that a member of the public is allowed to come onto the premises of the EPO is not enough. Will a member of the public have access to a videoconference room of the EPO? That a member of the public coming on the premises has to identify himself is acceptable, but no record of any corresponding data should be stored even on a paper form. Unless a court decides differently, any proceedings before a civil or a penal court is open to the public. Beside showing an ID or being refused access if the ranks of the public are full, there is no restriction. It should also be possible to access to oral proceedings electronically without previous notice. Through such an arrangement data are necessarily stored somewhere. What happens to this data, when will it be deleted and by whom? All those are questions which are not solved by the president’s decision. The EPO should simply publish a link which allows a member of the public to connect to the videoconference, and all corresponding data should be deleted automatically at the end of the oral proceedings. The EPO management regularly claims its immunity, but why should the EPO not be submitted to the EU directive on data protection? It is good to see that for once epi has reacted to measures unilaterally decided by the EPO. I had wished that it would have reacted also when some measures were taken by the previous president of the EPO, for instance the transfer of the boards to Haar. At the time, the silence was astounding. It is high time that the users of the system react more to the decisions of the upper management of the EPO. The EPO is a service oriented organisation and it is not with management gobbledygook about sustainability that it will progress and adapt to a new environment. The only sustainability which seems important to the upper management are the bonuses they will cash in. In the early years of the EPO, there was one word to qualify EPO’s attitude towards its users: “Anmelderfreundlichkeit”. It helped in the development and acknowledgement of the EPO as being user friendly, and made also its success. The last measures taken in matters of videoconferencing are the right opposite. The same can be said about the rush to grant patents as exemplified by a series of publications of Mr Bausch on the present blog. I fully support Max Drei’s comments. Techrights and zoobab: FINGERS OFF!!!
Concerned observer
It is a matter of fact that a Decision of the President of the EPO cannot have the effect of altering (the interpretation of) the EPC. The President simply does not have the power to amend (on his or her own) the Articles or Rules of the EPC in any way. Any restrictions imposed by the President on the right to be heard are therefore clearly unlawful and unenforceable (by the Boards of Appeal). Especially in the current circumstances, it is perfectly reasonable for ViCo technology to be offered as an OPTION to parties to proceedings before the EPO. However, for the reasons outlined above, it is unacceptable for proceedings to be conducted by ViCo against the wishes of any party to the proceedings. For opposition proceedings, the use of ViCos also poses problems (as discussed by Max and Attentive) regarding attendance by members of the public. So why would the President issue such an obviously problematic (and unlawful) Decision? Frankly, there is no good answer to this question. Indeed, this situation merely serves to illustrate the arrogant and, at times, lawless behaviour of the EPO's President (and senior management, who must surely also shoulder some of the responsibility for this latest outrage). This situation also raises another question to which there is no good answer: who will stop the President from trying to ensure that the Decision is both upheld and enforced? Certainly not the AC, as that has turned into a dog that is wagged by its tail. Perhaps the Boards of Appeal - but only if they still have sufficient independence to risk of opening up another political can of worms. (Bearing in mind that "resistance" from the Boards could lead to another situation where the President, perhaps again enabled by the AC, tries to overturn any inconvenient case law by introducing an Implementing Regulation that overrides the current interpretation of Article 113(1) ... and perhaps ultimately to another referral to the Enlarged Board in which the President kindly asks the EBA to agree with his novel interpretation of the EPC.) Previously, it was clear that the list of "stakeholders" whose voices and opinions that this (and/or the previous) President of the EPO was happy to ignore included (non-senior) EPO staff, EPO staff representatives, Board of Appeal members, the Association of the Members of the Boards of Appeal, national courts and their judges (as illustrated by events in the Corcoran case) and certain (national associations of) professional representatives. To that list we can now add the epi, patent applicants, opponents and interested members of the public. This poses one more question: is there any stakeholder whose opinion the President will take seriously? The way that things are currently working out, and absent a move by large numbers of applicants to take their cases to national patent offices, I would wager that the answer to this question is "no".
MaxDrei
Good stuff from the two Observers. For me, Concerned's concluding thought nails it. The arrogance on the top floor of the EPO can be imagined as a nonchalant shrug of the Presidential shoulders and a casual throwaway remark from him, to the effect that: "If the Applicants don't like it, they can eff off and take their cases to the national Patent Offices. But, until a lot of them do exactly that though, I shall keep going with my sociopathic, corporation-style policies. And for exactly the same reason as in all those anti-social corporations, namely, to maximise the "value" that the Chief Executive doles out to the EPO's shareholders. It is the ONLY duty imposed on the legal person that is a corporation. If that duty is good enough for a corporation, it's good enough for the EPO too. Especially the EPO. Because what's good for the EPO shareholders is good for the general public in Europe. End of discussion."
Attentive Observer
One can only agree with the bitter comments of Concerned Observer. Big hopes were uttered when the new president took office. Social dialogue should restart etc... Experience shows that the new one is not better than its predecessor. I would even say he is worse, as it tries to come over as being more friendly and forthcoming than its predecessor. His arrogance was legendary. The new one is not as arrogant but as ruthless. Not only he has not pushed aside some of the minions brought in by his predecessor. They are still in place and continue to harm staff, but he has also brought in loads of people from Alicante. When a new post is filled from outside, the standard question is: Alicante or Portugal? In other words nepotism is blooming at the EPO. It is clear that people heaved in such positions will not utter the slightest dissenting opinion towards the boss. Concerned Observer is right to say that the AC is nothing more than an assembly rubber stamping the wishes of the president and the whole system of checks and balances is not working any longer as the fathers of the EPC established it. When will we have a conference of ministers as foreseen in Art 4a of EPC 2000? The only way to bring change in the situation at the EPO and the omnipotence of its president is a possible decision by the German Federal Constitutional Court on the four complaints about the independence of the Boards of appeal of the EPO. As the new Chairman of the GFCC is a lawyer having acted for big litigation firms, one can have doubts whether something will change. The AC will never take steps to displease the president, and the agenda of the AC is in the hands of the latter. Any action which could be detrimental to his power will be squashed in the nub. Even the latest decision about help for the AC secretariat by the EPO is a joke. The EPO was truly a pan-European success story. This success story is being destroyed willingly by pseudo managers who consider the EPO no more than a playground for their power fantasies. The decision on ViCos is a perfect illustration of the perverted ways the EPO works nowadays. Had those people been at the helm of the EPO in its early days, it is not difficult to say that the EPO would not have become what it has been until the recent years. The mixed presidency was a first mistake, and what followed is hard to beat as far as destructive will is concerned. The independence of the boards of appeal is not even worth the paper on which it written down. The Board of Appeal Committee has deprived the Boards of their right to decide on their rules of procedure. Art 11 RPBA2020 is a good illustration of this situation. But Boards are resisting. On the other hand as long as the performance criteria allowing or not a re-appointment of members of the boards are not public, the mere claim that the boards are independent is a joke. In which legal system a judge is submitted to a performance appraisal in order to be re-appointed? Furthermore as long as the boards do not have their own budget they will never be independent. And the AC has rubber stamped all the suggestion of the former president as far as the boards are concerned. Techrights and zoobab: FINGERS OFF!!!