Changes to Examining Division Oral Proceedings

Effective immediately, Oral Proceedings before the Examining Divisions will be held by videoconference (see here). Oral Proceedings in person will now only take place in exceptional circumstances. So far, this announcement only relates to Oral Proceedings held by the Examining Divisions. It remains to be seen if the Boards of Appeal follow suit for examination matters.

While this will allow the work of the Examining Divisions and representatives to continue during the lockdown, the EPO recognizes that there may be technical difficulties when attending and hosting virtual Oral Proceedings. Consequently, the EPO announcement notes that if such technical difficulties cannot be overcome, a new Summons will issue with a new hearing date. However, in the case of non-attendance for non-technical reasons, the Oral Proceedings will continue in the absence of the Applicant as before.

The EPO has recognized that both the Applicant and their representative may wish to be present at the Oral Proceedings, and on request will allow both parties to connect from different locations. If the members of the Examining Divisions are in different locations, they will hold a separate videoconference for their deliberations.  

While some representatives have been attending videoconference Oral Proceedings from their offices, few will have attended from a home office. While there is no difference from a legal standpoint, this could impact on the training of junior attorneys as there is currently no provision for trainees to observe the hearing, when they might otherwise have done so. 

It is not clear how long these provisions will remain in place. While the Coronavirus is the obvious trigger, it is easy to see how these will continue as they release hearing rooms for Opposition matters. Moreover, previous requests for videoconference Oral Proceedings have only been granted if a videoconference room at the EPO is available. If Examiners can now carry out videoconference Oral Proceedings on their laptops, this lack of capacity should no longer be an issue.