Following the numerous notices and decisions issued by the European Patent Office, setting out its COVID-19 provisions, we provide the following summary of the latest guidance regarding time limits and oral proceedings.
Please contact your usual GJE attorney for more information or advice concerning specific cases.
Blanket Extension of Time Limits Ended on 2 June 2020
Time limits expiring on or after 15 March 2020 were extended to 2 June 2020. However, this marks the end of the EPO’s blanket COVID-19 extensions and due dates must now be observed as normal.1
The EPO do still provide the usual remedies for non-observance of time periods due to disruptions to mail. Therefore, extensions of time may be available for parties and their representatives in EPO contracting states where there is still a general dislocation in the delivery or transmission of mail due to COVID-19. Further, extensions of time may also be available to any parties or their representatives in areas affected by the outbreak if they can provide evidence that the delivery or transmission of mail was dislocated in that area due to COVID-19.
Oral proceedings before examining divisions and interviews in examination will now be held by video conference by default from 2 April 2020.2, 3
Oral proceedings may be held on EPO premises, at the applicant’s request or of the examining division’s own accord, if there are “serious reasons” against holding the oral proceedings by video conference.
Examples of “serious reasons” provided by the EPO are:
- The need to take evidence directly
- An impediment preventing an applicant or representative from participating in oral proceedings held by video conference
As a rule, the following will not be considered “serious reasons” by the EPO:
- Sweeping objections against the reliability of video conferencing technology
- The non-availability of video conferencing equipment
- The need to consider written evidence
However, if technical problems prevent the oral proceedings being conducted by video conference, the EPO will issue a new summons to oral proceedings.
All oral proceedings scheduled to take place on EPO premises in opposition before 14 September 2020, have been postponed until further notice, unless they will now be held by video conference under the EPO’s pilot scheme.4
Under the pilot scheme, which runs until 30 April 2021, oral proceedings before opposition divisions may be held by video conference at the discretion of the opposition division and with the agreement of all parties.5
Oral proceedings may not be held by video conference if:
- The opposition division has decided to take evidence
- There are serious reasons for not doing so
Boards of Appeal
The boards of appeal have now resumed, to a limited extent, the holding of oral proceedings in Haar from 18 May 2020. Parties will be requested to confirm that they expect to be able to attend in person and they do not anticipate being affected by travel restrictions.6
Oral proceedings will be conducted by video conferencing only with the consent of all parties.