In response to the Coronavirus pandemic the EPO has adopted a number of special measures including the postponement until further notice of oral proceedings in examination and opposition proceedings unless they are scheduled to take place by video conference (or the applicant is willing to convert the proceedings into oral proceedings using video conference).

The use of video conferencing has therefore, for the moment at least, become the default for oral proceedings in front of the Examining Division. However, video conferencing during the Covid-19 pandemic brings a number of additional challenges compared to the normal use of the technology.

It’s not just video conferencing, it’s video conferencing from home (or homes)

This author has previously taken part in oral proceedings via video conference where our end of the connection has been in one of our office locations. What this meant in practice was access to a very high speed Internet connection, a dedicated conference room and access to Keltie’s IT department in the event that something went sideways.

Video conferencing during the Coronavirus outbreak however means our end of the connection is in the home environment or rather in multiple home locations since colleagues assisting during the oral proceedings will be connecting from their own homes. We will therefore be relying on our home Internet service provider, be trying to find a quiet area at home for a number of hours and hoping that nothing goes wrong on the IT side as we will be our own IT support.

Variability in conditions

The connection to the EPO during a video conference will for us be via the Skype for Business platform. While this is a mature and stable platform this doesn’t necessarily mean that the set up will work from one meeting to the next. The EPO offers the option of a test call (highly recommended – link here) which this author has used twice in recent weeks. The first call went without a hitch but the second test (adding in another user at a different location) was a different matter entirely as my ISP was having unspecified issues impacting available download speeds. The call was eventually abandoned.

Side video conference

When attending an oral proceedings it is common to have a number of recesses during which the members of the division will deliberate and during which the representative can discuss the case with their colleagues. During a normal video conference this is still possible by muting the video call and/or by leaving the conference room. During the current situation however a second, side communications channel will be needed in order to discuss the case. It is noted that the recent notice from the EPO highlights (Article 2(2)) that the member of the division may themselves have a separate video conference running.

Technical Problems

According to the recent EPO notice, technical problems that interfere with the applicant’s right to be heard and which cannot be overcome will result in a new summons to oral proceedings. IPcopy will be interested to see how much leeway will be allowed in the event of technical issues. The EPO’s Guidelines for Examination suggest that a partial breakdown in communications (loss of video signal?) might not stop an oral proceedings but what might happen, for example, if the representative cannot verify their identity by showing their passport because the video stream is interrupted throughout?

Preparation

Conducting oral proceedings via video conference during the Covid-19 outbreak seems to require a little bit of additional planning and thought. IPcopy will be taking part in an oral proceedings by video conference in the near future and is hoping it goes off without a hitch. Some additional things we have done to try and prepare include:

• Multiple test calls. We have conducted more test calls than usual to make sure that all participants at our end are correctly set up
• Additional communications channel. The EPO video conference will be via Skype for Business. We are testing the use of a separate platform (Microsoft Teams) that will allow chat based messages during the conference with the EPO and a separate video conference option during recesses. To keep things separated, the separate communications channel will be set up on a second device.
• Backup connection. Given our connection will be at the mercy of a residential Internet connection rather than a commercial set up we are making sure there’s an alternative connection option (either a dedicated 4G hotspot or a mobile phone based hotspot) in case the main connection goes down or is unreliable.

IPcopy would be interested to hear in any other changes people are making to their video conferencing set ups during the current situation.

Mark Richardson 14 April 2020

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