Survey on Oral Proceedings by Videoconference
J. Gray (GB), Chair of the Online Communications Committee
In 2018, before the Covid-19 situation erupted, epi Council resolved that attendance at oral proceedings by videoconference (ViCo) should be a voluntary choice by the party and their representative. This was informed by a 2018 survey, predecessor to the present one. Thanks to the Covid-19 pandemic, however, the year 2020 saw rapid developments in the EPO's approach to conducting Oral Proceedings by ViCo. Examining Division (ex parte) proceedings moved entirely online, and Opposition Division (inter partes) proceedings went online for the first time.
During November-December 2020, epi surveyed its members to find out what they like/dislike about the current and evolving rules and proposals. Vice-President Heike Vogelsang-Wenke, EPPC Chair Chris Mercer and OCC Chair John Gray developed the survey with the assistance of other contributors and the Secretariat. Nearly 2000 people responded to some or all of the 25 questions, including thousands of written comments. After digesting these responses with the help of a team of volunteers, we present the key findings in this article.
The survey included 25 questions, exploring the attitudes of EPAs to ViCo hearings generally, and to the sudden compulsion to attend hearings by ViCo, which was the EPO’s response to the pandemic. A number of questions were addressed specifically to those who already had experience of oral proceedings by ViCo, for example to compare experience between the different platforms (Skype for Business or the new choice, Zoom) and types of hearing.
The 1947 respondents included 1327 (68%) European Patent Attorneys (EPAs) in private practice, and 590 (30%) in-house/industry. As the chart shows, responses from 22 countries were received overall. About one third were from Germany, then United Kingdom, France, Italy and Netherlands, all having more than 100 responses. The 30 non-EPA respondents were perhaps student members, as their responses corresponded broadly with the pattern of EPAs’ responses.
Q3-Q7: Policy Questions – the Right to a hearing vs the pandemic
In Question 3, respondents were asked if they agree with the November 2020 epi Council resolution (emphasis added):
“Council considers that, after the Covid-19 pandemic is over, oral proceedings should as a rule be held face-to-face but any party should be free to attend oral proceedings by videoconference, even if the other parties are attending in person.”
More than two thirds did agree with this resolution, as shown in the chart:
More than 600 written comments were provided. The vast majority think that face-to-face should be the default, some even want face-to-face to be mandatory at least in inter partes proceedings. With regard to “hybrid” proceedings (one or more parties face-to-face, one or more parties ViCo), most participants believe a party present in person will have an advantage over a party attending by ViCo. Many believe that either all parties should attend in person, or all parties attend via ViCo. A party choosing to attend hybrid proceedings by ViCo should not complain about any perceived disadvantage compared to face-to-face.
Comparing the answers by country, EPAs from the United Kingdom had a significantly greater percentage of “No” answers (43% compared with the average 27%).
In Question 4, participants were asked whether they agree with the measures taken by the EPO to keep backlogs in opposition and appeal proceedings manageable during the pandemic. Specifically for all cases before an Examining Division or an Opposition Division, all oral proceedings until 15th September 2021 will be by videoconference only. Options for response were:
- Yes (i.e. agree)
- No – oral proceedings should be only conducted in person (with Covid safety measures)
- No – oral proceedings should be conducted in person (with Covid safety measures) unless a party requests to attend by videoconference
- No – oral proceedings should be conducted in person if a party provides reasons why
- No – oral proceedings should be postponed until the restrictions are lifted
The responses are summarised in this chart:
Just less than half (49%) agreed with the EPO decision, while a quarter believed oral proceedings should be conducted in person (with Covid safety measures) unless a party requests to attend by ViCo.
Drilling into the text comments, many respondents differentiated the situation for ex parte and inter partes oral proceedings. They commented that ViCo is suitable for oral proceedings with the Examining Division but for opposition proceedings face-to-face should take place.
Comparing the responses by country, respondents from the United Kingdom and Italy were much more likely to agree with the interim practice of the EPO (GB 70%, IT 63%).
Question 5 asked whether the measures adopted by the Boards of Appeal during the pandemic should be the same as for Examining and Opposition Divisions. 70% said Yes and 22% said No. In the comments, both those who answered ‘Yes’ and ‘No’ highlighted their preference for face-to-face oral proceedings during Appeal and noted that i) Appeal is the last instance, ii) face-to-face should be the default, in particular for inter partes proceedings, and iii) ViCo should be an option upon agreement of the parties.
Question 6 asked whether Examining Divisions, Opposition Divisions or Boards of Appeal should have the power to require a party to attend oral proceedings either in person or by videoconference, against the wishes of that party.
There is a clear majority against this power, although about 20% recognised some need to enforce participation to maintain the flow of justice during the pandemic.
Comparing the opinions by country, respondents from Germany and United Kingdom were most likely to answer ‘No’ (68% DE, GB), but that could be because they don’t want to be forced to attend by ViCo or because they don’t want to be forced to attend face-to-face.
Prompted by the consultation on amendment to the RPBA, Question 7 asked whether in inter partes cases an Opposition Division or Board of Appeal should have the power to require ALL parties to attend oral proceedings by videoconference, if ONE party requests to attend by videoconference (thereby to avoid “hybrid” proceedings). The options for response were:
- Yes but only for the duration of the pandemic
- Yes but only if the request for videoconference is based on serious reasons (such as travel restrictions or quarantine)
Just under half of the respondents said ‘No’, while the other half were sympathetic to this, particularly when necessitated by the pandemic.
Comparing answers by country, respondents from Germany and Netherlands were most strongly against this power (64% ‘No’, 54% ‘No’).
Q8 & Q9: Pros and cons of Oral Proceedings by ViCo
Question 8 asked, what would be the main concerns of respondents, if they were required to attend oral proceedings by ViCo against their wishes? A number of typical concerns were offered, and space to specify ‘other’. 147 respondents indicated no concerns. The 1800 responses are summarised in the chart:
Many detailed comments were received, too numerous to reproduce here. In addition to the provided options, there were many comments on the inability of the EPO to prevent recording of ViCo OP (based on concerns that a recording could be made and used in proceedings in another jurisdiction).
Comparing by country, respondents from Italy were least likely to worry about getting their point across (20%) and Germans were most likely to worry (56%). Respondents from France were most likely to worry about their internet connection (39%), while respondents from Italy and United Kingdom were less worried (22%). In the other aspects, the concerns were roughly the same across all countries.
Conversely, Question 9 asked respondents what they think are the main benefits of oral proceedings being possible by ViCo. Again a number of typical benefits were offered, and space for ‘other’ to be specified. 71 indicated no benefit, while the 1876 responses are summarised in the chart:
Among 272 comments, participants presented other reasons in favour of ViCo, including: working at office is more convenient; the normal pace of the Boards is maintained; not favouring representatives in EPO locations; enabling those who would have difficulties to travel (for example new parents).
Comparing by country, the vast majority of respondents recognised reduced cost and reduced travel time as main benefits. Reduced environmental impact was cited by 84% of respondents from the United Kingdom, 68% from Netherlands, but only 52% from Italy. Respondents from the United Kingdom were also more likely to see benefit in ease of attendance by trainees (56%) and ease of attendance by clients (64%).
Comparing the numbers across Q8 and Q9, as well as by country, we see that respondents from United Kingdom definitely had concerns about having to attend oral proceedings by ViCo against their wishes, but were much more likely to see benefits of ViCo in general.
Q10-Q16: Experience of Oral proceedings by ViCo
Question 10 asked participants whether they have experience of EPO oral proceedings by videoconference, and what type was their most recent experience. Questions 11-15 are specifically about that experience. 848 of the respondents (45%) indicated some experience. For 555 (28%) their most recent experience of ViCo proceedings was with an Examining Division, 226 (12%) Opposition Division, 22 (1%) ex parte Appeal (Examination) and 57 (3%) inter partes Appeal (Opposition).
Question 11 asked which software (Skype for Business (“SfB”) or Zoom) was used for the most recent hearing, and whether the format was with the division/board members all on one camera or on individual cameras. As Zoom was a relatively new platform for the EPO, only 100 respondents indicated experience of Zoom at the time of the survey, while 748 had experienced SfB.
According to Question 12, two thirds of respondents would like filing of documents to be done within the videoconferencing application, but the existing email method is generally found to be satisfactory.
Question 13 asked respondents to rate the software used for ease of use and audio/video quality. 90% reported that the software was either Satisfactory (29%), Good (45%) or Excellent (15%), but 9% rated the software Poor. But which software? The following chart breaks these answers down:
Q13 vs software & setup
Comparing the responses according to the different platforms, we see clearly that Zoom provides a better experience for the users (97% Satisfactory, Good or Excellent), compared with Skype for Business (85%). Moreover, the proportion of users rating the software ‘Excellent’ more than doubles (to 37%) when every person has an individual camera. (NOTE: The chart shows percentages but the number of respondents using Zoom was smaller, presumably due to the very recent introduction of Zoom (100 Zoom experiences vs 748 SfB).)
Question 14 asked whether the respondent was satisfied that they could get their points across to the division (compared with their experience of in-person hearings). Only 48% felt they could get their point across about the same as in in-person hearings, or better. 12% were not satisfied, while 37% were satisfied, given the circumstances of the pandemic.
Much more detail was given in the textual comments. A number of respondents pointed out that nonverbal communication is impaired in videoconferences. The conduct of the procedure requires a lot more care by the chair. Some respondents noted that their experience only relates to “simple/relatively straightforward” cases and suggest that videoconferences might be less suited for more complex cases.
Comparing the responses according to the different answers given in Q11 (software setup), we see that those who experienced OP via Zoom felt they could get their points across a little better than those experiencing Skype for Business. Just over half of the Zoom users felt that the experience was at least as good as in in-person hearings, while 87% felt that the experience was, at least, satisfactory in the circumstances of the pandemic. On the down-side, 35-40% of the Zoom users and 50% of the SfB users felt they were not able to get their point across as well as in in-person hearings, and consistently around 11-13% were not satisfied in any of the ViCo platforms.
Comparing the responses according to the different answers given in Q10 (type of hearing), we see a higher level of satisfaction in Opposition Division hearings than in other types of hearing. The type of hearing and the type of software are, in practice, linked. Also the setup and training of the Opposition Divisions may have an influence. It will need to be reviewed over time whether the experience with Examining Division and Board of Appeal hearings is better in Zoom.
Comparing the same answers by the country of the respondent (Q2), the level of satisfaction reported by respondents from Italy and United Kingdom was much higher (62% same as or better than face-to-face hearings) than that reported from Germany or the Netherlands (34-35%). (Interestingly, this difference in responses informed by experience of a few respondents, bears out the difference in expectation between those countries that was seen in Question 8.)
Q14 vs Country
Question 15 asked, whether participants were satisfied that they could follow the points made by the division or other participants (compared with your experience of in-person hearings)? The proportions satisfied were very similar to those reported in Q14.
Similar to the comments on question 14, respondents noted that nonverbal communication is impaired and that the faces of individual participants, especially examiners/board members, are not clearly visible. This highlights the preference that each examiner/board member should have their own camera. Some noted audibility problems, while others noted that audibility is improved by videoconference, for example because the volume can be adapted to the volume of the person who is speaking.
Comparing the Q15 responses according to the different answers given in Q 11 (software setup), we see a pattern very similar to Q14: those who experienced OP via Zoom felt they could follow the points made by others a little better than those experiencing Skype for Business. In fact, 60% of the Zoom-on-individual cameras users felt that the experience was as good as in-person hearings, while 92% felt that the experience was, at least satisfactory in the circumstances of the pandemic. Conversely, however, 38-43% of the Zoom users and 45% of the SfB users felt they were not able to follow the points being made as well as they would face-to-face.
Comparing the responses according to the different answers given in Q 10 (type of hearing), we see a pattern even more extreme than in Q14: of those who experienced OP in Opposition Appeal, only about 40% felt they could follow the points made by others as well as they would in in-person hearings. Over 10% were not satisfied that they could follow the points being made as well as they would in in-person hearings.
Q15 vs type of hearing
(NOTE: 90% of the Opposition Appeal hearings had been experienced in Skype for Business, i.e. 52 vs. only 5 experiences of Zoom hearings. It is to be hoped that the experience with Board of Appeal hearings is better in Zoom.)
Comparing the responses by country, the satisfaction level is higher in Italy and United Kingdom, similarly to Q14.
Question 16 invited further comments about experience. Most comments were in support of ViCo, but with a decline of support from Examination > Opposition > Appeal. It seems that the skill of the division/board in handling proceedings is in general more important than whether the proceedings are conducted face-to-face or by ViCo.
Q17-Q25: Other questions
Under the Covid restrictions, amended patent documents filed during Oral Proceedings can only be filed by email. Answering Question 17, 75% of those who responded felt that email is sufficient, although 20% wanted the alternative of fax to be allowed. 184 respondents provided explanatory comments, with many suggesting that fax is outdated/unreliable.
In reply to Question 18, 40% of those responding thought it ‘Essential’ that the videoconference application allow screen sharing and 'whiteboard' functions for use by parties (subject to the established guidelines). A further 49% thought it ‘Useful (but not essential)’. A few were concerned about, for example, security restrictions in their company setup, keeping a record of what is shown, and possible misuse.
In reply to Question 19, 65% of those who answered would prefer that the same videoconference application provided private ‘rooms’ for internal discussions (so that additional communication means for internal discussions within their team could be superfluous). 24% would still make other arrangements.
In reply to Question 20, 20% of those responding indicated that some videoconferencing software or other is prohibited in their workplace IT systems. In order of most prohibited among the four major packages, these are: Zoom (13%) Skype/Skype for Business (4%) Teams (3%) Webex (3%). 48 out of 1844 say they are prohibited from using both Zoom and Skype for Business. Comparing answers between private practice and in-house members (Q1), the restriction on installing software seems to be more of a problem for those in-house (>40% vs <10% of those in private practice). The solution that most respondents adopt, when faced with these prohibitions, is to use their own personal devices, or devices not linked to the company’s network, to participate in a videoconference. Several such respondents indicated that they are allowed to use Zoom for oral proceedings as an exception to the general prohibition.
Question 21 looks ahead to face-to-face hearings (when circumstances allow) and asks, which participants (if any) should be allowed to join by videoconference if they choose? 1764 respondents expressed an opinion.
Comments reflected the diverse opinions that proceedings by ViCo should, on a voluntary basis, be possible for all parties and their representatives, and/or that mixed/hybrid proceedings should be avoided. With respect to possible additional participants by ViCo (beyond those mentioned in the survey) the public was mentioned in about 10 % of the responses.
A surprisingly uniform opinion, however, relates to the presence of the deciding panel, i.e., the members of the Opposition Division or Board of Appeal: for in-person hearings their physical presence “in person” is strongly demanded by most of the commentators. Furthermore, the prevalent opinion is that the members of that panel should sit together in order to allow for a lively, possibly contentious, but productive discussion between the members of the Division or Board. Generally, it is asked that the parties and the members of the deciding panel communicate their way of participation well in advance to the other party and panel, in order to avoid somebody travelling from a distant location to Munich or The Hague solely to see that s/he is facing video screens rather than a panel or an adverse party!
Asked which ViCo software they use regularly in their work (Question 22), more than three quarters (77%) use Teams regularly, and more than half (54%) use Zoom regularly. Asked which is their preferred hardware (Question 23), over 70% prefer to use their normal work computer or laptop (albeit with additional screens, audio headset etc); 36% prefer a dedicated videoconferencing room installation.
In the event that the connection is lost during a videoconference and cannot be re-established, a majority (64%) of those responding would prefer that simply a second date be scheduled, although 20% would prefer to receive a new Summons.
Question 25 invited final free text answers, and 243 comments were received and reviewed.
It is difficult in the space available to do justice to the range and depth of comments received, and the diversity of situations and experiences. The detailed submissions serve as a valuable resource that will not be lost, and that is available to be consulted by interested members.
Some broad conclusions are drawn, namely:
- A majority of respondents recognise the suitability of ViCo between willing participants and for simpler cases but believe that it is not as effective as face-to-face hearings and should not be forced upon unwilling participants after the pandemic.
- A substantial minority disagree and favour ViCo as the default, for reasons such as “level playing field” and carbon footprint.
- On some questions, we see significant differences in opinion between participants from different EPC countries, including differences in the relative weighting of the various drawbacks and benefits of ViCo vs. face-to-face hearings.
- Some very positive experiences are reported, but also some less optimal (including with Boards of Appeal).
- Some software platforms and arrangements work better than others, particularly Zoom with all participants on individual cameras.
- Acceptance and success depends heavily on the careful preparation, training and conduct of the proceedings.
- Technical guidelines should be realistic and not arbitrary.
- EPO does not seem to have a solution to the problem of illicit recording by “public”, when recording is not allowed by the participants themselves.
- There is a strong belief that hybrid proceedings bring too many additional hazards in the conduct of the hearing and probably disadvantage the remote party. Hybrid should be avoided unless the remote party really prefers it that way and accepts the risks.
Thanks to the team who helped in analysing the many responses, including Heike Vogelsang-Wenke, Chris Mercer, and John Gray plus David Brophy, Friedrich Scheele, Nada Herak, Manolis Samuelides, Konstantinos Vavekis, Gianni Masciopinto, Martin Bierbaum, Michael Kisters, Wolfgang Wilhelm.
Results of the online survey and full statistics can be found on the epi website: https://patentepi.org/r/vico-survey