The question of which communication channels people trust more in the case of inconsistent messages was investigated in a number of studies conducted by the Iranian-American psychologist Albert Mehrabian. His formula, repeatedly replicated, according to which 7% of people trust the spoken word, 38% trust vocal expression and 55% trust body language, demonstrates the importance of non-verbal communication channels that are often lost in virtual settings. (1)
The Enlarged Board of Appeal of the EPO will soon decide on an interesting question: may oral proceedings before the EPO in principle be conducted by videoconference, even against the will of the parties?
In May 2020, no one would have expected that appeal case T 1807/15 would lead to a landmark decision. After all, it only related to the maintenance (or not) of a patent relating to a radio frequency amplifier, a routine type of case at the EPO.
But this case was only the first in a long line of similar cases. Since the first Corona wave began in 2020, quite a few oral hearings at the EPO have had to be postponed. The oral proceedings were finally scheduled for February 2021. But not entirely surprisingly, the representative of the London-based patent proprietors requested that the oral proceedings be postponed once again. The reason? He was prevented from attending in person on account of the prevailing Corona situation and the ongoing travel restrictions between Germany and the UK. A videoconference was also deemed impracticable - the case would after all require simultaneous translation. This also seemed to make sense to the opposing party, who shortly afterwards expressed its objection to the oral proceedings being conducted via videoconference.
Up to that point, conducting oral proceedings via videoconference was contingent on the consent of the parties. However, statistical evidence shows that little use was made of videoconferencing. As a result, the backlog of pending first instance proceedings continued to grow, because the Corona restrictions had led to a stay of almost all proceedings.
How to clear a Corona backlog? - 360 decisions per month!
The rapidly growing backlog was and is frustrating for the EPO administration - especially considering the successes that had already been achieved and the shorter first instance appeal procedures in the years immediately preceding the Corona pandemic.
If the current backlog is to be eliminated by the end of 2022, about 360 cases per month will need to be dealt with. This is stated in the progress report of November 2020. The report concludes by recommending that oral proceedings be conducted via videoconferencing, with or without the consent of the parties. (2) Per decision of 10 November 2020, the President of the EPO followed this recommendation.
A bumpy start
We need to take ourselves back to March 2020 when the "Corona crisis" more or less officially began. The first wave rolled in. People started social distancing. Meetings were cancelled.
For a variety of reasons, it became difficult to conduct oral hearings with physical presence. These include, in particular, travel restrictions, general social distancing restrictions and hygiene measures. This was true for small businesses as well as for large institutions. However, while the Boards of Appeal still continued to conduct oral proceedings with physical presence under strict hygiene conditions, the EPO had already suspended such hearings until 31 December 2020, later extended to 15 September 2021.
Unlike the Office, during the year 2020 the Boards of Appeal conducted oral proceedings in different formats, either
- with the parties present in person
- with the parties connected by videoconference, or
- in a hybrid setting.
In December 2020, the President of the Boards of Appeal nevertheless requested the Boards of Appeal Committee to add a new Article 15a to the Rules of Procedure of the Boards of Appeal.
This is also consistent with the decision of the EPO President. Article 15a specifies that the Boards of Appeal may in principle conduct oral proceedings under Article 116 EPC via videoconference without the consent of the parties. The Boards of Appeal Committee made an ordinance to this effect and the Administrative Council approved the new Article on 23 March 2021. However, this measure is not subject to any time limit and is therefore not only limited to the period of the pandemic.
The virus says, „What do I care about the law?”
Running in parallel to the proceedings at the Office and at the Boards of Appeal just described, the radio amplifier case mentioned above moved along. Here, too, the key question was whether oral proceedings may be held via videoconference even against the will of the parties. Hitherto it was normal for oral proceedings before the Divisions or Boards of Appeal to be held with the parties physically present - which seems reasonable in view of the often technically and legally complex issues involved. But Covid is no respecter of institutions, and this includes the EPO. What do viruses care about legislative acts?
The Board of Appeal responsible for this case now referred an important question to the Enlarged Board of Appeal, the highest tribunal for the interpretation of the European Patent Convention (EPC). The question was put without reference to the new Article 15a of the Rules of Procedure of the Boards of Appeal:
Does the EPC, specifically Article 116 EPC, allow oral proceedings to be conducted via videoconference against the will of the parties?
Should the Enlarged Board of Appeal come to the conclusion that the EPC would not allow this, not only Article 15a of the Rules of Procedure, but also the measures taken by the Office to combat the effects of the pandemic would be nullified, pure and simple.
It is, of course, unfortunate that such fundamental questions are being decided in the current heightened atmosphere caused by the pandemic. But it is equally understandable that extraordinary measures are needed right now in order to avoid, as far as possible, judicial gridlock. In any case, it seemed that with the different formats the Boards of Appeal had found a good middle ground, without forcing the parties to participate in videoconferencing. The Boards of Appeal conducted oral proceedings either with parties physically present, with participants connected via videoconference or as a hybrid hearing.
Article 15a of the Rules of Procedure may now compel the parties to participate in a videoconference. Moreover, it is also a permanent arrangement. It is not unlikely that even after the pandemic is over, it will also be applied analogously for first instance proceedings. In other words, its rationale is not based solely on the current crisis situation.
However, many legal questions arise here. Is the issue of videoconferencing to be dealt with in the same way for administrative proceedings at the Office as for quasi-judicial appeal proceedings before the Boards of Appeal? Can exceptions be made in a pandemic situation, even if they concern something as fundamental as the right to an oral hearing?
We’ll keep you posted!
Opinions pro and contra - and everything in between
We will now briefly outline the arguments currently circulating pro and contra oral proceedings conducted via videoconference. We will also briefly present "hybrid forms" of oral proceedings. All arguments are taken from the wider world of opinion and present an open - but by no means conclusive - landscape for discussion:
- Technical problems, such as simultaneous interpreting and the participation of several parties at the same time have meanwhile been solved by videoconference platforms (3)
- The possibility to switch off one's own microphone allows members of a party to discuss among themselves even during the oral proceedings (3).
- Even complex issues can be illustrated in a videoconference, e.g. by a participant using split-screen functions.
Proceedings before the EPO primarily conceived as written proceedings
- "Since proceedings under the EPC are primarily designed as written proceedings, Article 116 EPC ensures that parties that have submitted a written case are also given the chance to present their case orally at oral proceedings. This being the case, any format of oral proceedings that can achieve this aim properly would be acceptable." (4)
Legal aspects - access to law and justice
- Jurisprudence under the European Convention on Human Rights is "a living instrument [...] which must be interpreted in the light of present-day conditions". (4)
- Oral hearings cannot simply be postponed indefinitely. This is very important in the legal certainty interests of the participants in the proceedings as well as third parties (5).
- The parties, potential competitors and the public have an interest that the clarification of the intellectual property rights situation is not unduly delayed. (6)
- The time taken up in proceedings can be minimized. (3)
No risk of infection
The pandemic has made physical presence at oral hearings difficult. But videoconferencing has already made it possible to bring many cases to a conclusion without having had to run the risk of infection.
Cutting down on time and travel
- By eliminating the need to travel to the hearing venue, travel costs and time are saved.
- It is easier for the public to follow hearings - a huge advantage. (3)
- The carbon footprint is reduced (6)
A high level of transparency and accessibility
- A video hearing also reinforces the transparency of the EPO's Board of Appeal system and leads to better understanding of the European patent system and greater acceptance of decisions amongst international applicants - and thus ultimately to improved quality of new patent applications. (6)
Videoconferencing would greatly improve accessibility and deliver better results [...], faster and at lower cost for all. (7, Richard Mair, CIPA President)
- It lowers the barrier for the participation of several representatives or members of the parties in the hearing [...], which can increase the transparency of the proceedings and allow the parties to better understand decisions taken by opposition divisions. (3)
Many of the reasons have in fact nothing to do with the crisis situation caused by the pandemic. Rather, it’s the savings in time, CO2 and costs as well as the technical possibilities and simplified participation that are persuasive.
Violation of the concept of the oral hearing
The format of a videoconference is not compatible with the concept of oral proceedings provided for in Article 116 (1) EPC. (4)
- Article 116 EPC expressly refers to oral proceedings. "The possibility of conducting the hearing via videoconference is not provided for in the law itself" (8).
- The term oral proceedings before the respective Division in Art. 116 EPC also refers to the place where the oral proceedings must be held. (8)
- Such an expansive interpretation of the term 'oral hearing' is neither in line with the meaning and purpose of the law or established legal practice, nor can it be legitimised by the current pandemic. (8)
Violation of the collegial system
- Videoconferencing could violate the collegial system enshrined in Art. 21 EPC. Experience with VICOs in first instance shows that the hearing is often limited to a discussion with the rapporteur who has studied the case in most depth. (9) In the higher tribunal, however, all members should bear equal responsibility for the decision to be taken - which presupposes deliberating with each other and with the participants. (6)
No legal basis for the compulsory use of videoconferencing
- Physical-presence hearings are a long-established practice.
- The decision of the EPO President could under certain circumstances lead to a violation of the right to be heard within the meaning of Art. 113 EPC or Art. 6(1) ECHR if the oral proceedings were conducted via videoconference against the will of the patent applicant. (8)
- An unstable or intermittent internet connection or lack of data security could become a problem. Moreover, technical problems could lead to an imbalance between the parties. (8)
- Certain camera angles could in some situations make it more difficult to identify a particular speaker or to follow the interactions between the members of the opposition division. (3)
- There are delays in the simultaneous translation. (10)
Alternative ways of reducing the risk of infection
- There is no necessity to hold videoconferences; there are enough alternative means available to reduce the risk of contagion. (8)
- There is a "risk of inadequate treatment of the case due to communication barrriers”. (10)
“…the weight of the oral proceedings will become lower when they are held by vico turning the whole proceedings into a more written proceedings”. (10)
- Psychological aspects such as imperceptible gestures or facial expressions can also impact on the outcome of a hearing.
- Attention span and receptivity may suffer. (11)
- The interposed medium may have a distancing effect. It is to be feared that the opposition division would no longer be so open to the arguments of the parties, preferring instead to stick to its preliminary written opinion. (3)
- The atmosphere or the finer points of the argumentation may suffer or get lost. The lack of direct eye contact can make it harder to “read” the interlocutors, which can influence the outcome of the proceedings.
- Videoconferences may make it more difficult to turn around a previously formulated preliminary opinion of the opposition division. (11)
- Distancing could lead to generally accepted rules of conversation not being adhered to. (3)
- The weight of responsibility a judge may feel in a courtroom may be greater. (6)
The psychological aspects are probably the most important. An oral hearing marks the culmination of a long procedure and is the final stage before the decision is made. There is a fear that the technical limitations could lead to a weaker presentation of facts and arguments, which in turn could have a negative impact on the decision. A videoconference is not perceived as being equivalent to a trial where the parties are physically present.
… and everything in between
“Don’t worry. Be hybrid” (Fiat)
- For many, "hybrid negotiations" are also conceivable, in which different parts of the proceedings can be conducted in different formats.
- Above all, the participants' experience with the technical aspects of videoconferencing varies greatly. For this reason alone, many do not want to be forced into videoconferencing.
- As against this, one often hears it said by participants: “If all parties involved agree to hold the proceedings by video conference, it is fine by me.” (10)
Form your own opinion!
Psychological aspects of videoconferencing - Please don't nod off! ;-)
As the quote at the beginning of our article already shows, the psychological dimension of videoconferencing should not be underestimated. What gets lost in a videoconference? How does a viewer’s or speaker’s behaviour differ from that of persons physically present? And with videoconferencing is there a risk of fatigue setting in? Interesting expert interviews & articles on this topic can be found under the following links:
Artikel über Grenzen der Online-Kommunikation (Sebastian Kunert)
Participants should be aware of this. Communication via videoconferencing calls for other forms of communication. It is possible that our society will develop communication mechanisms that will put videoconferencing on a par with conventional modes of discourse. Only time will tell. However, at present this is not yet the case. While acknowledging that the pandemic has given new impetus to the relevant technology, it is still at an early stage, as are the people using it.
Oral proceedings in patent disputes before the EPO can be extremely complex - not only technically and from a legal point of view, but also in terms of language. Given this fact, further complicating communication would seem to be a rather risky proposition. Otherwise, like Bill Murray, we may end up not only "lost in translation" but also "in lost communication". For all the transparency and savings in CO2 emissions, that would not do the patent system any good.
Is the planned amendment to the law in conformity with the EPC?
Opinions differ here. Article 116 of the European Patent Convention provides the basis for the right to an oral hearing.
Two decisions. Two opinions.
The previously mentioned Board of Appeal came to the following conclusion in T1807/15:
“In the Board's view, just because the EPC has not explicitly defined the format of oral proceedings does not necessarily mean that the term "oral proceedings" in Article 116 EPC should be construed so broadly as to encompass videoconferences...”
Another Board of Appeal came to the exactly opposite conclusion in T2320/16:
„As noted in the foregoing, the board finds that oral proceedings by videoconference are consistent both with the literal interpretation and with the legislative intent underlying Article 116 EPC 1973 and 2000.”
The Enlarged Board of Appeal will have to look into this carefully.
The right to an oral proceeding according to Art. 116(1) EPC is a fundamental procedural right of the parties. However, not only the EPC itself, but also the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), whose contracting states even extend beyond the territory of the EPC, secures this procedural right with the requirement of a fair hearing in Art. 6(1). An amendment, as provided for by Article 15a of the Board of Appeal Ordinance, should be reserved for a diplomatic conference, if this amendment is possible at all.
The President of the Boards of Appeal has already expressed his opinion on this, since the proposal to amend the Rules of Procedure of the Boards of Appeal came from him. It remains to be seen whether he can now decide on this issue impartially as Chairman of the Enlarged Board of Appeal. The Administrative Council has just adopted the amendment. In the communication of 24 March 2021, the President of the Office stated that despite pendency before the Enlarged Board of Appeal, proceedings before the Office will continue to be conducted via videoconference, even against the will of the parties and against the usual practice of suspending the proceedings. The hearing in the case before the Enlarged Board of Appeal will take place on 28 May 2021 in the form of a video conference. One almost gets the impression that the decision has already been made.
People can certainly have different opinions on the matter. Exceptional circumstances require exceptional remedies. And no one denies that videoconferencing has its advantages, contributes to the efficiency of the judicial system, and for the moment alleviates the gridlock in the administration of justice. However, there seems to be no justification at present for mandating videoconferencing for the time after the pandemic. Nevertheless, it is not unrealistic to think that the pandemic will now irrevocably determine events far into the future. At present, permanent restructuring of oral proceedings is under contemplation. Shouldn't the measures relating to the pandemic be kept separate from this?
What is your view? We are looking forward to discussing with you on LinkedIn!
1. Grenzen der Online-Kommunikation, Sebastian Kunert, https://www.coaching-magazin.de/beruf-coach/grenzen-der-online-kommunikation, 2020, downloaded on 12.04.21
2. Opposition oral proceedings by videoconference in the context of COVID-19, Europäisches Patentamt, http://documents.epo.org/projects/babylon/eponet.nsf/0/BF708885F3F0AA38C125861C0055BC88/ $File/opposition_oral_proceedings_by_videoconference_in_the_context_of_covid-19_-_progress_report_en.pdf, November 2020, downloaded on 07.04.21
3. Business as usual – jedenfalls fast, Philipp Nordmeyer, https://www.deutscheranwaltspiegel.de/intellectualproperty/covid-19/business-as-usual-jedenfalls-fast-21962/, 20.11.20, downloaded on 25.03.21
4. T 1807/15 (Oral proceedings in the form of a videoconference) of 12.3.2021, European Patent Office, https://www.epo.org/law-practice/case-law-appeals/recent/t151807eu1.html, 12.03.21, downloaded on 25.03.21
5. User consultation on an amendment to the Rules of Procedure of the Boards of Appeal (RPBA 2020) – insertion of new Article 15a (oral proceedings by videoconference), Hansjörg Kley, https://www.kley.ch/hansjoerg/patrecht/br_epa_2020Z11EP_2020-11-23.pdf, 23.11.20, downloaded on 25.03.21
6. Nutzerbefragung zur Änderung der Verfahrensordnung der Beschwerdekammern durch Einfügung eines neuen Artikel 15a, „Johannes Lang, Tobias Kaufmann“, https://www.bardehle.com/de/ip-news-wissen/kanzlei-news/news-detail/nutzerbefragung-zur-aenderung-der-verfahrensordnung-der-beschwerdekammern-durch-einfuegung-eines-neuen-artikel-15a-muendliche-verhandlung-als-videokonferenz, 01.12.20, downloaded on 25.03.21
7. Response to EPO consultation: Don’t impose oral proceedings by videoconference, Kluwer Patent blogger, http://patentblog.kluweriplaw.com/2020/12/02/response-to-epo-consultation-dont-impose-oral-proceedings-by-videoconference/, 02.12.20, downloaded on 25.03.21
8. Von Pandemien und mündlichen Verhandlungen per Videokonferenz, Claudia Erbsmehl, https://www.thomannfischer.ch/de/ueber-uns/aktuell.html, 21.12.20, downloaded on 25.03.21
9. Stellungnahme zu mündlichen Verhandlungen per Videokonferenz im EPA, Patentanwaltskammer, https://www.patentanwalt.de/files/pak/pdf/kammer/stellungnahmen/4_2020_Stellungnahme_1.pdf, 15.07.2020, downloaded on 07.04.21
10. Survey on Oral Proceedings by videoconference, EPLIT, http://www.eplit.eu/wp-content/uploads/2020/11/EPLIT-Survey-on-Oral-Proceedings-by-videoconference-20201123.pdf, 20.12.20, downloaded on 25.03.21
11. EPA-Beschluss zu mündlichen Verhandlungen per Videokonferenz, „Dr. Arwed Burrichter, Mathias Karlhuber, Dr. Natalie Kirchhofer“, https://www.cohausz-florack.de/blog/artikel/epa-beschluss-zu-muendlichen-verhandlungen-per-videokonferenz/, 12.11.20, downloaded on 25.03.21