Kluwer Patent Blog

6 comments

1. Thanks to Mr Bausch for an entertaining video sequence!

   I invite also readers to have a look at the position paper of epi on the proposed Art 15aRPBA.

   Everything which is technically feasible (even with the inevitable problems, see above) should not to be pushed through, and certainly not the way it is done presently at the EPO and at its BA.

2. I find it immensely depressing that the reactions to the EPO’s proposals from different quarters are so predictable. For example, those private practice attorneys remote from Munich are enthusiastically in favour of the proposed amendment to the RPBA, whereas those working in or close to Munich are uniformly opposed. This geographic alignment is, of course, no accident, as it precisely matches the commercial interests of those parties.

   Of course, the EPO is not immune to being swayed by commercial matters. If substantial reductions in overheads can be achieved by switching permanently to VICOs by default, then this would perfectly align with the current management’s drive to avoid a predicted (though hotly disputed) “black hole” in the EPO’s future finances. Similarly, if the municipal authorities in Munich had a say in the matter, then they would no doubt be strongly opposed … I mean, the almost complete elimination of in-person oral proceedings at the EPO is bound to have a negative effect upon the income that the city’s businesses derive from those visiting in order to attend such proceedings.

   The reason that this is all so depressing is that what tends to get lost in all of the commercially-motivated arguments and counter-arguments is attention to the underlying legal principles. Those essentially arguing that this is all a fuss about nothing are therefore missing the entire point.

   I can agree that how OPs are conducted before the EPO is not a matter of life and death, and that it is potentially acceptable for the standards for such a civil law “trial” to be different to those for a criminal trial. I can also agree that the OPTION to use VICOs before the Boards is a welcome development, and is indeed something that representatives have for years been arguing ought to be possible. Personally, as much as I enjoy visiting Munich, I am delighted to have a more eco-friendly (and less costly) option for participating in OPs. A reduction of the in-built advantages for attorney firms located in or around Munich is also, I believe, a welcome development.

   HOWEVER, advantages for “court-proximate” firms are an inherent and unavoidable consequence of selecting a particular location for any court that conducts in-person proceedings. The same is true for the financial and environmental costs associated with travel to such a court.

   It goes without saying that we should look for ways to avoid (or at least mitigate) such problems associated with courts that conduct in-person proceedings. However, in order to avoid infringing the right to a fair trial (which is a right that also applies to civil proceedings), it is essential to identify a robust legal basis for any proposed solution. It is on this point that the proposed amendment to the RPBA fails spectacularly.

   Whilst it is true that Article 116 EPC does not explicitly preclude OPs being conducted by VICOs, this does NOT provide a legal basis for making VICOs mandatory (ie imposing them against the wishes of parties to the proceedings). If it were otherwise, then making TELEconference proceedings mandatory would also be an option open to the EPO … as this would meet the requirement for “oral” proceedings.

   Thus, what is really at stake here is the interpretation of the EPC, and who has the power to change that interpretation. That, for commercial reasons, some parties are in favour of the proposed change is perfectly understandable. However, what is not understandable is an inattention to the lack of legal basis for the proposed changes, and an indifference to the dangers of establishing another precedent for the EPO’s use of subordinate rules (or even a mere decision of the President of the EPO) to overturn interpretations of Articles of the EPC established in the case law of the Boards of Appeal.

   Merely allowing the option for use of VICOs with the consent of the parties is an important step whose long-term impact should not be minimised. Those parties wishing to save costs (and the environment) will be free to take up that option. Further, once the pandemic is over, permitting (with the consent of the parties) the use of “hybrid” OPs before the Boards would help to ensure that there are no unnecessary delays in appeals. The EPO’s efforts should be therefore be directed at figuring out how best to deliver the OPTION to use VICOs and “hybrid” proceedings, including establishing robust and long-lasting technical solutions as well as appropriate legal safeguards for the inevitable occurrence of technical problems during proceedings.

   With the end of the pandemic now (hopefully) in sight, there is simply no need to make a change to the RPBA that not only lacks legal basis but that will also be permanent unless later reversed.

3. Good stuff from Concerned Observer. It left me thinking that politics is “The art of the possible” as Donald Trump’s period of office in the White House has so painfully reminded us.

   Manifestly, such an attitude has come to infect the EPO President, his coterie of enablers and advisers, and the Member States sitting on the Administrative Council. They all seem to think that the only criterion of whether or not some change is OK is whether it’s possible to push it through. The thought whether the change is compatible with the Rule of Law seems to be no longer a factor. Why is this? The thought that, otherwise, there will be no change and that in turn will lead to China running everything? Or is it just laziness, cowardice, and acquiescence to the wishes of the local Alpha Male?

   These are depressing days for those, including me, who happen to think that a functioning representative democracy, running under the Rule of Law, is not “a given” and that unless it is robustly defended, and fought for, it will expire.
   Those in positions of authority that actively disrupt and abuse the Rule of Law should be challenged because, in the words of the song “You only know what you’ve got when it’s gone”.

   We look on, appalled, at those who voted for Donald Trump’s form of politics and government. But by what right can we criticise them. I prefer to criticise the highly educated, hugely intelligent and politically sophisticated voters on the EPO’s AC. They have no excuse. They should know better than to encourage EPO management in its misdeeds and casual attitude to the over-riding objective of reliably and consistently delivering (and being seen to deliver) justice between parties in dispute..

4. Dear Concerned Observer,

   I cannot but agree with your views. That the geographical location of representatives plays a role when deciding in favour or against OP in form of ViCos was to be expected. One has just to read the overwhelming positive comments from representatives being far away from Munich in the article of JUVE dated 25.11.2020 “Compulsory videoconferencing reshuffles the cards for patent attorneys”. But this should not be the driver behind such a change.

   When it is claimed that it can be easier for parties far away from Europe or even from Munich or The Hague within Europe, when OP are in form of ViCos, it is forgotten that the parties as such do not have to be present at the OP. After all, they have representatives to that effect! And the representative should know how far he can go or not.

   All the accompanying persons, employees or experts of parties and patent attorneys from non-EPC member states do not have to be present. If they are present it is the own choice of the corresponding party, but again the cost aspect linked with it should not be the driver for such a change in the proceedings.

   What is highly disturbing is that not only the President of the EPO decides to deeply amend the procedure before the EPO but that he gets indirectly full support from the Boards of Appeal.

   If the Boards also impose OP in form of ViCos, then any party to first instance proceedings coming out of a ViCo-OP considering that its right to be heard has not been properly respected due to the form the OP took, stands no chance before a Board.

   According to the proposed Art 15a RPBA20, it is left to the discretion of the Boards to decide whether an OP should take the form of a ViCo or not. As the EBA is not up to the expectations when it comes to appreciate the exercise of discretion of the Boards when acting under Art 112a, the move of the Boards towards ViCos appears even more problematic.

   It should be left to the parties to decide whether they want to have OP in form of a ViCo. If they agree, nothing is to be said, but I have even reservations about “hybrid” OP. In any case after the end of the pandemic, OP should, as standard, be held in the presence of the parties and the deciding body of the EPO.

   Furthermore, neither the President nor the Boards of Appeal have the legitimacy to amend the EPC in such a drastic manner. If the EPO and its Boards of Appeal want to bring such deep changes to the whole procedure before them, this should be the object of a Diplomatic Conference, and not a quick decision taken under an exceptional circumstance.

   Some court cases in member states of the EPC, or even outside, can drag on for many years until all the instances are exhausted. I therefore do not see the need for such a hassle when it comes to OP before the EPO during the pandemic.

   In the exceptional circumstance of a pandemic, and later, it should be left to the parties to have OP in the form they wish. In that respect, if there is a need during the pandemic, then why not a ViCo, but only when the parties agree. After all in lots of technical domains the parties involved in oppositions take the opponent role at a certain time and later that of proprietors. There will thus be a balance of interests emerging from this situation, but no need for the EPO or its BA to decide what can be good for the parties.

   Epi’s position paper on Art 15a make it abundantly clear that once the pandemic is over, OP before the BA should in principle revert to the original form unless the parties agrees otherwise. If at all needed, Art 115a RPBA20 should only have a limited life time. This seems a reasonable proposal.

5. Another position paper of interest has been published last Friday by BusinessEurope on behalf of the European industry (https://www.businesseurope.eu/publications/epo-consultation-amendment-rules-procedure-boards-appeal-regarding-oral-proceedings). It advocates the face-to-face oral proceedings as “the default way to conduct oral hearings” and is strongly against the EPO’s proposal that the parties can be compelled to attend via VICO.

6. There is a further problem which cannot be shoved under the table: data protection. Some companies do not allow their staff to use certain videoconferencing systems, like for instance Zoom. They certainly have good reasons for this.

   Some videoconference systems are harboured outside Europe. The guaranties offered by the GDPR are thus not available.

   The EPO might have its own data protection directives, but those should only be applicable to its own staff or for internal dealings. When dealing with third parties, the GDPR should be applied as the EPO has its seat and all its branches within the EU.

   Seeing what the president of the EPO has answered to the Central Staff Committee (CSC) on this topic during a videoconference does not bode well for any sensitivity of the EPO in this matter:

   Data protection
   We (the CSC) raised the issue of data protection: some tasks and services would be outsourced to companies or workers outside Europe, thus outside the realm of the EU General Data Protection Regulation (GDPR) and the EPO-internal Data Protection Guidelines4. The President replied that the Office was being cautious but that the cloud services the Office intended to use increasingly in the future were mostly controlled by Chinese or US American companies. However, in his view, there was presently no alternative and he asked us once again (the CSC) to be more realistic.
   4 German Data Protection Offices have published an Orientation guide on video-conferencing systems “Orientierungshilfe Videokonferenzsysteme”

   This attitude of the president is quite irresponsible. Who is he to decide that we should simply use US or Chinese systems and forget the data protection mechanisms available in the EU.

   All this is going quite far and one wonders what could be done to stop this kind of arrogant attitude from the head of an institution which after all is at the service of its users and not for the benefit of its management.

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