Video conference is the way forward if the EPO wants to make oral proceedings more accessible and inclusive, patent lawyers have told Managing IP.
The EPO published the results of a survey on Tuesday, November 30, which found that two-thirds of respondents had a positive experience of oral proceedings held over VICO at the opposition division.
The survey highlighted the supposed benefits and disadvantages which have already figured prominently in the debate over VICO – for example, the reduced carbon footprint on the one hand, and the loss of body language on the other.
But several practitioners experienced with opposition proceedings at the EPO say the option of VICO has been an equaliser for lawyers with disabilities and those who would otherwise be unable to attend.
This includes lawyers with young children, especially single mothers, as well as younger trainees.
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The EPO has faced criticism from some practitioners over its eagerness to deploy VICO as widely as possible since the COVID-19 pandemic began.
One of the main objections has been to holding VICO proceedings without the consent of all parties.
The EPO’s right to do so was confirmed in the Enlarged Board of Appeal’s decision in G1/21 at the end of October.
Our survey says…
The latest survey indicates that, for opposition proceedings at least, most lawyers are happy with how it has gone so far.
Of the 700 practitioners who responded, two-thirds said they had a “good” or “very good” experience of VICO proceedings.
Respondents cited shorter travel time (551), lower costs (441), and reduced environmental impact (311) as the main advantages of VICO.
Thorsten Bausch, partner at Hoffmann Eitle in Munich, cautions that location is the most likely predictor of someone’s position on VICO.
“You could say that the more remote the parties are from the EPO offices in Munich, the more they preferred VICO,” he suggests.
The fact that the UK accounted for 38% of respondents may, therefore, help explain why the survey was so overwhelmingly in favour of VICO.
True to this formula, Munich-based Bausch opposes VICO as a default format for oral proceedings, instead describing it as a “necessary evil for situations like the one we are in now”.
Whether or not the survey is an accurate snapshot of how the profession feels, the VICO format makes it easier for more practitioners and parties to attend.
That could have significant benefits in terms of inclusivity and diversity, which have been somewhat underplayed throughout in the VICO debate, a number of lawyers tell Managing IP.
Cyra Nargolwalla, partner at Plasseraud in Paris, says one of the main advantages of VICO is that international clients can attend and access justice much more easily.
“One of our first VICO proceedings was for a Japanese client. The oral proceedings went on for 10 hours, and there were 10 of them in attendance for the whole time.
“They would never have been able to send 10 people to Munich,” Nargolwalla says.
Of course, what clients want isn’t uniform. Bausch suggests that his clients would prefer in-person proceedings for more important cases.
Levelling up
The accessibility benefits don’t just apply to clients, but members of the profession who would otherwise find it difficult to attend or fully participate in oral proceedings.
One upshot of VICO, Nargolwalla argues, is a much more inclusive legal system.
Her firm’s submission to the EPO focused largely on the need to consider specific disabilities when determining a format for proceedings.
Nargolwalla knows some attorneys and EPO members for whom VICO has proven an advantage because every speaker’s face is clearly visible on screen, rather than being on the other side of a room.
Caelia Bryn-Jacobsen, a committee member of the IP Inclusive group, says VICO has been the “most significant levelling up event for people with disabilities”.
IP Inclusive is a UK-based association of IP professionals focused on improving diversity and inclusion in the sector. Bryn-Jacobsen, a senior associate at Kilburn & Strode in London, is part of the IP Ability sub-group focusing specifically on disability.
“For some of our members with physical disabilities, it might take days to get to Munich, where some will need carers with them,” she says.
“The EPO has been really good at dealing with those concerns, but it’s still very difficult.”
She stresses that there simply can’t be a format that will work for everyone in all cases.
Someone who relies on lipreading, for example, may prefer in-person proceedings because they find body language is particularly important.
“Body language can be a big part of how someone advocates,” Bryn-Jacobsen says.
The UK Chartered Institute of Patent Attorneys has been a strong advocate for VICO as the new default format for EPO proceedings. President Alicia Instone says the accessibility benefits just underline the case for continuing with it: “VICO helps those who can’t travel, for example for health or for family reasons.”
She adds: “I am a strong advocate of measures to support equality and diversity and have been delighted to see the successful adoption of a technology that provides access to all, regardless of personal circumstance or physical mobility.”
Case by case
The key, Bryn-Jacobsen argues, is for format to be determined on a case-by-case basis. Nargolwalla agrees that proceedings need to be flexible enough to accommodate specific disabilities and individual needs.
Luis Berenguer, EPO spokesperson, tells Managing IP that disabilities are taken into account when determining format. At present, opposition proceedings are held over VICO unless there are “serious reasons” not to.
Examples of serious reasons may include, for example, a proven visual impairment that prevents a representative from following oral proceedings on screen, Berenguer says.
Advocates of continuing with VICO also feel it could make proceedings a lot more accessible to more members of the profession who may otherwise face obstacles in attending.
For example, Nargolwalla says, VICO offers many more trainees a chance to sit in on oral proceedings without the cost of flying them to Munich.
It’s also a valuable option for attorneys with young children, as organising childcare might otherwise be an obstacle to attending, Nargolwalla says.
Bryn-Jacobsen concurs, saying VICO has made her childcare a “lot easier”.
“As a single mother for most of my career, arranging childcare for a three-day trip to the EPO is hugely expensive. And then all it takes is for one of them to fall ill and it all falls apart.”
If there is any consensus among practitioners, it’s on the need for flexibility.
Bausch is happy to concede there are individual cases where VICO might be the better option.
“I’m not an ideologue who would insist on in-person proceedings in each and every case, but I think parties should have a right to in-person hearings,” he says.
The EPO will continue with VICO as the default option until at least May 31 2022.
Berenguer says: “During this period we will continue with the assessment of the options, improvement of the tools, internal and external training measures, and dialogue with the various stakeholders aiming toward users regarding oral proceedings by video conference as their format of choice.”
No perfect solution
It’s unlikely everyone will be won over. Many practitioners feel there are too many problems associated with VICO to make it their preferred default.
Bausch shares the main disadvantage cited by respondents to the survey, namely the difficulty in picking up on body language or non-verbal communication.
“The EPO thinks they get efficiency gains from VICO, and they can implement a new normal where most examiners work from home,” Bausch says.
“My personal impression is that the board is less engaged over VICO. The other disadvantage is that it almost never works perfectly,” he adds.
This is far from a marginal view. Mr Justice Richard Meade of the England and Wales High Court told Managing IP last month of his relief that most trials were now in-person again.
“It’s far better than nothing, but it’s too far short of perfect to be a permanent solution,” the judge said of virtual hearings.
Instone of CIPA, meanwhile, says that questions of body language are “moot” in patent disputes.
“There is no empirical evidence of the importance of body language in oral proceedings and we don’t remember it even being mentioned before the introduction of VICO. In any event, facial expressions are far more evident on Zoom than across a room,” she says.
Bryn-Jacobsen suggests it would be helpful if there was a better medium for dialogue with the relevant EPO board or division, rather than exchanging written correspondence.
When it comes to VICO, the multitude of opinions and personal circumstances suggests the best thing might be for the EPO to be as flexible as possible.
For issues around accessibility in particular, a blanket solution won’t work for everyone.
But having VICO as an option has opened the doors of oral proceedings at the EPO to more practitioners and clients who would otherwise find them inaccessible.
