20 May 2020

COVID-19 update – oral proceedings before the Boards of Appeal

On 6 May 2020, the President of the Boards of Appeal published the latest update regarding the holding of oral proceedings before the European Patent Office’s (EPO) Boards of Appeal.

The Boards of Appeal now intend to permit the use of video conferencing for participating in Appeal oral proceedings. This follows from the permanent change for Examining Division oral proceedings [link to Simon’s article] and the pilot project for oppositions [link to Tim’s article].The use of video conferencing will only be conducted with the agreement of all parties. A dedicated room located at the premises of the Boards of Appeal in Haar, Munich will be made available for limited numbers of the public to attend via video conferencing.

At the same time, the Boards of Appeal announced a plan to resume oral proceedings at their premises in Haar. Since the beginning of COVID-19, the Boards of Appeal have postponed all oral proceedings held on their premises up to 15 May 2020. If the public health situation permits, the Boards of Appeal envisage resuming oral proceedings at their premises in Haar from 18 May 2020 but only to a limited extent. Parties will be contacted accordingly if this affects them.

As the Boards of Appeal begin to resume oral proceedings at their premises, the arrangements surrounding entry to the Boards of Appeal premises have been updated. They include:

  • Parties will be requested to confirm that they expect to be able to attend in person and they do not anticipate being affected by travel restrictions. Parties and their representatives will be asked to inform the EPO as soon as possible whether they plan to attend
  • Anyone entering the Boards of Appeal premises will be asked to complete a simple screening questionnaire upon arrival. Any person replying to one of the questions in the affirmative will be denied access to the Boards of Appeal premises
  • In the light of the current restrictions, in particular the need for social distancing, parties are requested to consider whether all representatives and accompanying persons need to attend
  • It will be possible for members of the public to attend oral proceedings. However, in view of the current circumstances, only limited places will be available. Visitors interested in attending oral proceedings are therefore encouraged to announce their interest well in advanceStrict sanitary measures will be put in place to ensure that oral proceedings are held in optimum conditions. These measures will include, in particular, rules on minimum physical distancing and the requirement to wear a face mask on the way to the oral proceedings room. Parties, representatives and other visitors are asked to bring their own face masks.

​We will keep you informed of all developments. We consider that this is a welcome development, and we are pleased to note that Venner Shipley conducted the EPO’s first ever video conference Board of Appeal oral proceedings. Gary Whiting attended for Venner Shipley, and writes about his experience below.

Tim Russell

With the guidance just out, I took part in oral proceedings before the EPO Board of Appeal by video conference on Friday 8 May. As it turns out this was the first videoconference for any Board of Appeal. It was also the first time that I had taken part in oral proceedings from home, rather than my usual office.
In common with many European patent attorneys, I routinely attend oral proceedings before EPO Examining Divisions by videoconference. Thus, holding ex parte proceedings in this way was reasonably familiar to me. Perhaps the key difference was the Appeal proceedings were open to the public (who could attend in person at the Board of Appeal premises in Haar). There were members of the public in attendance at my Hearing, but I could not see them. Other Board of Appeal members and staff keen to see how the technology worked perhaps?
The use of video conference facilities was clearly a novelty for the Board, who were keen for my feedback on the experience. I was able to tell them that I found the experience entirely comfortable and I would agree to this again.
In my experience, holding oral proceedings by video conference has many advantages that usually outweigh any advantages of appearing in person. The use of video conferencing has obvious advantages relating to travel time. Less obvious, perhaps, is the advantage of being in familiar surroundings, with ready access to normal office facilities. Perhaps the only additional stress is the reliability of the technology, which is ever improving.
Overall, the experience before the Board of Appeal was a positive one.

Gary Whiting