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EPO Boards of Appeal Launch Consultation to Give Board the Power to Hold Hearings by Videoconference

By Joseph Lenthall, Partner

The EPO Boards of Appeal have today launched a consultation on changing the Rules of Procedure of the Boards of Appeal to give Boards the power to hold oral proceedings by videoconference (ViCo). A copy of the consultation can be found here.

The Boards of Appeal propose to insert Article 15a into the Rules of Procedure. The text contains two elements: (i) to allow the Boards to decide to hold oral proceedings by ViCo if considered appropriate (proposed Art. 15a(1)); and (ii) to allow any participant (party, representative, accompanying person or even Board Member) to attend in-person oral proceedings by ViCo (proposed Art 15a(2) and (3)). The proposal follows the recent announcement from the EPO that the Opposition Division oral proceedings will be by ViCo by default from 4 January to 15 September 2021 (see our commentary here).

The Boards of Appeal were already under some pressure to clear their significant backlog even before the Covid-19 global pandemic. It is therefore understandable that the Boards wish to continue with holding oral proceedings and issuing decisions, and the decision to push for more ViCo hearings felt inevitable. The wording of the proposed text suggests that ViCo oral proceedings will not be the default for all Board of Appeal hearings (as is the case for Examining Division currently and Opposition Division from 4 January 2021). Instead, the Board would exercise its discretion to hold oral proceedings by ViCo or in person, as appropriate. A likely implication is that Board oral proceedings will go ahead as ViCo if there Covid-19 travel restrictions in place. What is not clear is if the Boards will accommodate any changes, such as the start time of the hearing, for parties who will be participating from significantly different time zones (such as the US or Asia).

The use of ViCo for hearings is a progressive move from the Boards of Appeal (and the other parts of the EPO). The current consultation ends on 27 November 2020, so it is possible that any changes will be introduced from 1 January 2021. ViCo oral proceedings are set to be the norm for most hearings at the EPO for the near future if not beyond. Haseltine Lake Kempner has a team of opposition and appeals experts, so please do get in touch if you have any questions on this topic.