For a long time, it was discussed in legal circles whether oral proceedings should be held primarily in the physical presence of the party representatives, as in the pre-Corona period, or, as the Corona pandemic forced upon us, with virtual presence via video conference, as was customary during the pilot project set up by the EPO for this purpose. The pros and cons were obvious: in physical presence, the party representatives can also express themselves through gestures and, if necessary, read from the facial expressions of the three members of the examination or opposition division whether they are gaining argumentative points or not. In contrast, with virtual presence, travel costs can be saved, the ecological footprint can be reduced and, as a result, clients are able to attend more frequently.
The President of the European Patent Office, António Campinos, has now put an end to this discussion for his area of responsibility, i.e. for oral proceedings before the Legal Division, the Examining Division, the Opposition Division and the Receiving Section: as of 1st January 2023, the default format of oral proceedings in opposition will be the Video Conference.
The official announcement, see EPO – President decides future format of oral proceedings in opposition, says “Only under certain circumstances, and when the opposition division permits it, will oral proceedings in opposition be conducted in person.”
Oral proceedings may still be held on the premises of the European Patent Office, either at the request of a party or at the instigation of the division if there are serious reasons against holding the oral proceedings by videoconference. If a request to hold oral proceedings on the premises of the European Patent Office is refused, the parties will be informed of the reasons. It is important to note that such a refusal is not separately appealable.
It remains to be seen, under which boundary conditions these “certain circumstances” or “serious reasons” will apply.