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Opinion: Are some European patent attorneys resistant to change?


Attorneys should embrace video technology at the EPO – causing delays now is not helpful for the post-COVID future

The video call has been a staple of the pandemic, but it seems some European patent attorneys have had enough and want its use in EPO appeal proceedings reviewed.  

At issue is whether the EPO is legally allowed to mandate parties to appear by video conference in appeal proceedings. The EPO ruled in December that it is, with the change taking effect on January 1, but a large chunk of European patent attorneys say it shouldn’t be. Just last week, it emerged that a German firm had asked an EPO Board of Appeal (BoA) to refer the issue to its Enlarged Board of Appeal.

The question seems to be, in essence, is it legal to hold oral proceedings by video conference without the parties’ approval?

Context is key here. It’s important to point out that the boards have been conducting some hearings remotely during the pandemic. At the EPO’s examining and opposition divisions, video hearings have been the default unless there is a good reason against them. Now, however, it appears attorneys are irked by the notion of being ‘forced’ into a video hearing at appeal level (although I’m not sure the EPO would characterise it as such).

There are totally valid reasons for opposing this policy. Lots of attorneys have reported how challenging it can be to conduct remote hearings and appeals – everything from losing internet connection to being unable to read body language, a key aspect of proceedings. There are undoubtedly legitimate concerns around access to justice and the right to be heard, and it does seem that the EPO needs to invest more in its IT systems.

More than meets the eye

However, the cynic in me wonders whether there are ulterior motives at play and whether some attorneys just don’t want to adapt to the new world we live in.

First, the new rules could pose a clear threat to the business of firms based near the BoA’s headquarters, close to Munich. Parties seeking representation may feel it less important to use a local firm and instead opt to look elsewhere. This may explain why some German firms in particular have voiced their opposition to the new rules.

It is a fair gripe, but I imagine other attorneys across the EPO member states would argue that some German firms have been operating at an unfair advantage for some time and that a rebalancing is needed. In any case, the EPO BoA Committee explicitly said in December that it would review the use of video conference within 18 months (although I accept there is the risk of mission creep here).

Second, there have been lots of positive reports of remote litigation in the UK. I’ve read comments on social media suggesting that this experience should not be compared with EPO appeal proceedings, but both are contentious in nature and both require a video camera. It’s true that the situation isn’t perfect and that many lawyers would probably prefer to be in court, but it’s fair to say that it can work well.

Shirkers and shielders

There are other good reasons for mandating video conferences. 

The EPO and the BoA are under pressure to keep on top of their caseload and avoid creating a huge backlog, the long-term effects of which would be negative not just for the patent system but for the lawyers working within it. 

We also can’t shy away from the fact that some parties have been deliberately delaying proceedings by refusing to appear in a video conference. The new policy acts as a counter-measure to that.

There are other factors still. Even as vaccines are rolled out globally, no one knows where or when travel restrictions might be implemented in the future.

And more to the point, some attorneys may not wish to travel for good reason – they may have had a bad dose of COVID-19, or they may have yet to receive a vaccine, or they may still be required to shield. 

In the consultation leading up to December’s announcement, the Institute of Professional Representatives before the EPO argued that in unforeseen circumstances, proceedings should just be cancelled unless there are exceptional circumstances.

However, for the above reasons, this would clearly be unworkable; there are likely to be long-term disruptions to the ability and willingness to travel. In the event of any doubt or dispute over one side’s ability to travel to Munich, the BoA can now ensure that proceedings continue by making a video hearing compulsory.

Above all, though, I do wonder whether some attorneys are just resistant to change. The pandemic has shown that we need to embrace technology to get things done. The chances of us ‘just going back to normal’ are slim, if not remote, at least in the next few years. The world has changed, and I think the EPO realise that. Patent attorneys work at the cutting-edge of innovation and technology; they should be some of the first people to see the bigger picture. 

The latest referral is unfortunate in that more proceedings are likely to be put on hold until the issue is resolved. What’s that famous saying? ‘Justice delayed is justice denied.’

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