EPO: VICO Oppositions are Here to Stay

The EPO has decided, following completion of a pilot project, that from 1 January 2023 video conference (VICO) will be the default format for Oral proceedings in opposition. The practice of recent months and years is here to stay.

When the Covid pandemic swept the planet in early 2020, the business world adapted quickly, adjusting to online meetings and interactions. The EPO, already experienced at the running of Examining Division hearings with VICO, adopted similar ways of doing things in oppositions.

In April 2020 an EPO pilot project was launched for oral proceedings before opposition divisions. Under the pilot, VICO was made the default mode for conducting opposition hearings.

In a just published final report on the pilot project the EPO, based on significant user feedback, has concluded that VICO will become the default format for opposition hearings. The report notes that 77% of respondents found oral proceedings in opposition by VICO to be good or very good. The environmental benefits were noted by the EPO with an indication that the default use of VICO has saved thousands of journeys every year, with obvious consequential reduction in CO2 emissions.

The report is generally consistent with the opinion of the EPO Enlarged Board of Appeal in G1/21. This decision found that during a general emergency impairing the parties’ possibilities to attend in-person oral proceedings at the EPO premises, the conduct of oral proceedings before the boards of appeal in the form of a VICO is compatible with the EPC even if not all of the parties to the proceedings have given their consent to this form. G1/21 does not comment on whether this would be the case in the absence of a period of general emergency. Accordingly, the recent report on the pilot seems to go further than the Enlarged Board’s decision.

There have been voices of dissent. Some have commented that best justice flows from face-to-face interactions between parties and division. However, the statistics in terms of results in oppositions have shown little difference in dependence on the format of the hearing.

The EPO will allow on-the-premises hearings if necessitated by serious reasons. These could be the needs of a participant, such as an individual with visual impairment that prevents them from following the proceedings on screen. The subject-matter of the proceedings could also be important, e.g. when it involves the demonstration or inspection of an object involving haptic features. These are very specific examples that have been given by the EPO. It has cautioned that sweeping objections to VICO based on the reliability of videoconferencing technology or the non-availability of videoconferencing equipment will, as a rule, not qualify as serious reasons for conducting a hearing on the premises.

A formal decision of the President is scheduled for publication imminently. It will include more detail regarding the rules of procedure going forward.

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