ViCo for Oral Proceedings at the EPO – CIPA’s view
December 10, 2020
It is becoming clear that videoconferencing is inevitable in the long term for all oral proceedings at the EPO. The next generation of users of the system will expect a remote, distributed and technology-based process as a matter of course and, as indicated by the EPO’s recent Progress Report, the technology supports adoption of ViCo now.
In our response to the consultation by the Boards of Appeal to proposed new Article 15a RPBA on ViCo, CIPA puts the case for the urgent adoption of the same rules as have been implemented at first instance, with the sole caveat that the technology is fit for purpose. The EPO Progress Report and experience in other intellectual property courts has shown that ViCo has indeed come of age bringing benefits of efficiency, accessibility, reduced costs and reduced environmental impact - and the inclusion of all available talent regardless of location.
In a global pandemic with necessary restrictions on travel, this has become a critical question of access to justice. ViCo not only provides this access, but enhances it, while ensuring that appeals are dealt with in an effective and timely manner.
The Boards can mould best practice by adopting the same approach as at first instance and this consistency will bring clarity for users. We strongly oppose so-called “hybrid proceedings” (a mix of in person and ViCo attendance) as being inherently unbalanced. The principles of fair proceedings referred to by the BOAC – fair conduct, right to be heard, right of access – all support the approach of ViCo for all.
The EPO and Boards of Appeal have shown leadership during the pandemic and now have the opportunity to shape the future of the patent system in the EPC Contracting States. We hope that the Boards will join the EPO in leading the way.
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Concerned observer
Well, if CIPA's position was not clear before, it certainly is now! However, it remains a mystery to me how to logically square the circle between enthusiasm for VICOs but strong opposition to "hybrid" hearings. Asserting that hybrid proceedings are "inherently unbalanced" can only mean that CIPA believes that oral proceedings by videoconference are NOT equivalent to oral proceedings held on the premises of the EPO. In other words, whilst CIPA does not question the legal basis for VICOs, it adopts a position that directly contradicts the legal fiction of equivalence ... with the consequence that CIPA therefore implicitly accepts that imposing compulsory VICOs impairs the rights afforded to applicants under the EPC. (The only possible alternative explanation would be that CIPA believes that, in hybrid hearings, parties participating by VICO would have an unfair advantage over those participating in person. However, this cannot justify opposing the use of hybrid proceedings. If a party is willing to accept any disadvantages associated with their choice, why should they be prevented from participating in person if they truly wish to do so?) Whilst I warmly welcome the OPTION to use VICOs for oral proceedings, I cannot for the life of me understand why, in common with the EPO, CIPA is prepared to accept (seemingly without question) that there is adequate legal basis under the EPC for the rejection of requests for in-person oral proceedings. It is not as if the Boards of Appeal have never ruled upon this issue. As pointed out in an earlier thread, there is ample case law on this point, ALL of which reaches conclusions that flatly contradict the current position of the EPO (and CIPA). For those that strongly support the mandatory use of VICOs, I appreciate that arguments questioning the legal basis in the EPC may come across as excessively nit-picking. However, in my view, to adopt such an attitude would be to miss the entire point. To be clear, the point at stake here is whether it is acceptable for the EPO to interpret the EPC in a manner that DIRECTLY CONTRADICTS interpretations established by the EPO's judiciary (ie the Boards of Appeal). As illustrated by the explanatory note accompanying the proposal to introduce Article 15a into the RPBA, the current practice of the EPO appears to be to do nothing more than establish whether the wording of the EPC expressly forbids the interpretation that the EPO would like to adopt. This of course ignores a number of additional factors that the Boards would consider, such as meanings that are implicit in the wording of the EPC, meanings emerging from the other rules of interpretation (such as systematic, teleological and historical interpretations, as well as consideration of subsequent agreement or practice) and meanings established in the prior case law of the Boards. Because it ignores so many important factors, the EPO's current (preferred) approach to interpreting the EPC is legally unsupportable. It is also likely to lead to a situation where established interpretations of the EPC can be overridden at the drop of a hat, without involvement of the Boards of Appeal and simply by executive decree. Is this an approach that can be condoned by the patent profession? I would hope not.