● 07.02.21

●● ‘ViCo’ Technical Issues Already Curtail the Case About EPO ‘ViCo’, Decision Cannot be Issued Today!

Posted in Europe, Patents at 9:00 am by Dr. Roy Schestowitz

Summary: Tweets are not accurate, but at least they’re fast and here’s what was said just minutes ago by people who watch the hearing live

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> #G121: Technical issues with the video stream meant there has been a delay to the start of the proceedings. Somewhat ironic given the nature of the present case. However, we’re underway now and the proceedings have now begun.#EPO #oppositionsandappeals #oralproceedings #ViCo

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> — HGF (@HGF_IP) July 2, 2021

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> #G121: The appellant alleges that the current #oralproceedings are unfair due to the absence of minutes from the last hearing and the issuance of an interlocutory decision only a few days before this hearing, giving little time to respond.#EPO #ViCo #oppositionsandappeals

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> — HGF (@HGF_IP) July 2, 2021

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> #G121: The appellant alleges that the replacement of certain members of the EboA was done incorrectly, because the alternates were not selected according to A.24 EPC. They request a postponement of oral proceedings until a 'lawful' Board is composed.

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> — HGF (@HGF_IP) July 2, 2021

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> #G121: The EBoA request that the matter of the referral is discussed, not the issue of partiality which has in their view already been decided.

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> — HGF (@HGF_IP) July 2, 2021

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> #G121: Proceedings break for the EBoA to discuss the request to declare themselves not competent, and the request for oral proceedings to be postponed once again until a competent Board is composed. #EPO #videoconference #oppositionsandappeals #oralproceedings #ViCo

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> — HGF (@HGF_IP) July 2, 2021

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> #G121: Proceedings re-open. The EboA announce that the requests are dismissed and now turn to the matter of the referral – are proceedings held by ViCo compatible with the right to OP if not all parties give consent? Admissibility of the referral will be addressed first.

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> — HGF (@HGF_IP) July 2, 2021

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> #G121: The President of the EPO submits that the point of law is of great importance, therefore, the referral should be admissible, but notes that A.116 does not specify the form of OP and that the form of OP is for the relevant department of the EPO to decide.

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> — HGF (@HGF_IP) July 2, 2021

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> #G121: There is a short break for the appellant to prepare his response.

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> — HGF (@HGF_IP) July 2, 2021

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> #G121: The appellant argues that the term 'Oral proceedings' in A.116 does not include videoconference, and that to allow OPs by ViCo without consent deprives parties of a right to OP in person…

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> — HGF (@HGF_IP) July 2, 2021

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> #G121: …that they have had for 40 years of the EPC and which is customary – an argument that seemed to land with the EBoA. We have another break for the EBoA to discuss. #EPO #oppositionsandappeals #oralproceedings #ViCo

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> — HGF (@HGF_IP) July 2, 2021

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> #G121: The EBoA have tabled some questions: What is the difference between using ViCo and other technology like powerpoints at OP, should they be disallowed too because they weren't available 40 years ago?…

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> — HGF (@HGF_IP) July 2, 2021

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> #G121: …If we assume that the term 'oral proceedings' does not include videoconference then where is the legal basis for holding any hearings by ViCo with or without consent? – this last one seems to be causing some debate!

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> — HGF (@HGF_IP) July 2, 2021

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> #G121: Technical issues at the EPO continue to disrupt the proceedings, ironically! Meanwhile the representatives for the President of the EPO equate the mere choice of a room for OP to choosing the format of OP and….

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> — HGF (@HGF_IP) July 2, 2021

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> #G121: …continue to assert that this should be a decision of the relevant department of the EPO.

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> — HGF (@HGF_IP) July 2, 2021

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> #G121: The appellant brings it back to the question of consent for ViCo, they state the issue is the parties still have the right to OP in person at the EPO, therefore the EPO should not be able to decide to remove this right on behalf of the parties…

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> — HGF (@HGF_IP) July 2, 2021

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> #G121: …The issue is not whether ViCo is an appropriate format for OP as argued by the representatives for the President. We break for the EBoA to deliberate.

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> — HGF (@HGF_IP) July 2, 2021

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> #G121: The EBoA announce that oral proceedings are closed, they will deliberate, and a decision will issue in due course. Sadly no decision on the matter today. The HGF team will provide an update as soon as the written decision is out.

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> — HGF (@HGF_IP) July 2, 2021

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Another account:

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> Board have returned in G1/21. No surprise that both current requests have been dismissed.

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> Only surprise is how long it took to arrive at decision – maybe they felt need to also fuel up on coffee to get them through the rest of the proceedings?#patents #G121

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> — Emma Longland (@emma_longland) July 2, 2021

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> Chair announced would now start discussion of referred question, and repeated that question. Commented on breadth of qs (w/ no limit to 1st/2nd instance or inability to travel)#patent #G121 pic.twitter.com/tGrkzgYwcL

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> — Emma Longland (@emma_longland) July 2, 2021

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> Chair said would begin by discussing admissibility of qs & merits.Indicated Board do not see problem with admissibility, but not sure necessary to provide answer across full scope of question.Asked Appellant to comment & then would give Reps of President turn#patents #G121

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> — Emma Longland (@emma_longland) July 2, 2021

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> President's representatives (contd):-need decision to avoid long-term legal uncertainty-needs to apply to all instances-please reformulate qs if nec. to get breadth#patents #G121

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> — Emma Longland (@emma_longland) July 2, 2021

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> Appellant (contd):- don't see as much by VICO as in person; small people on screen & not as much body language or activity- told not to sit together within Board / Party so loss of communication between breaks#patents #G121

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> — Emma Longland (@emma_longland) July 2, 2021

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> Appellant finished so 30 minute break announced (to 13:20 CEST).Board to prepare and then ask round of questions.Then last round of statements.#patents #G121 #lunchtime

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> — Emma Longland (@emma_longland) July 2, 2021

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> Proceedings were resumed simply for the Chair to state that the debate is closed, as all relevant issues have been discussed.

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> The Board are going to continue their discussion and the decision will be published as soon as possible.

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> OPs were then closed. #patents #G121 @EPOorg

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> — Emma Longland (@emma_longland) July 2, 2021

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> IMHO, think Board might approve use without consent for now, due to pandemic. But might try to limit applicability of the decision, so that the exercise of discretion (VICO vs in-person) post-covid must balance more in favour of Party choice.

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> What do you think?#patents #G121

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> — Emma Longland (@emma_longland) July 2, 2021

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