Oral proceedings as video conference – major differences between EPO and DPMA

Since January 1, 1998, i.e. for 23 years now (reference in EPO Official Journal 12-1997, 572), the European Patent Office (EPO) has established a communication system which allows oral proceedings before the EPO to be held by videoconference. Until the beginning of 2020, such oral proceedings by videoconference were only provided for proceedings before the Examining Division and, as a rule, only at the express request of the applicant. In view of the contact restrictions applicable throughout Europe, this practice has been extended to oral proceedings in so-called ex parte proceedings, i.e. proceedings in which at least two parties negotiate with the EPO. Oral proceedings by videoconference are now also held before the Boards of Appeal of the EPO. In addition, as of January 1, 2021, taking of evidence by videoconference is also possible in proceedings before the EPO (see decision of the Administrative Council of December 15, 2020).

In the course of 2020, the EPO has to some extent performed an about-turn in this regard, so that a party must now expressly request that no video hearing but a presence hearing take place or that it be allowed to participate in a hearing conducted as a video hearing not by videoconference but in person on the premises of the EPO.

In contrast, a search for the keyword “video conference” on the website of the German Patent and Trademark Office (DPMA) currently yields only two hits. One links to an article of the DPMA from November 2020, in which, among other topics, modern video conferencing and communication technology for internal DPMA communication is advertised under the heading “We act sustainably”. The other concerns an information sheet on data protection at DPMA videoconference events.

In response to our inquiry on this topic at the DPMA press office, we were only informed that it is currently not foreseeable whether and when oral proceedings before the organs of the DPMA can be held as videoconferences. However, it is planned to hold oral proceedings at the DPMA again from May 2021 in order to prevent the already large backlog in the proceedings from increasing further.

As a conclusion, it remains to be said: While the EPO has taken the challenges of 2020 as an opportunity to expand its already existing possibilities for holding oral proceedings as video conferences and to use them more extensively, not least in order to minimize procedural delays, no progress is to be expected from the DPMA in this respect for the time being.

Markus Faig