●● IRC: #boycottnovell-social @ FreeNode: Tuesday, December 08, 2020 ●●

● Dec 08
[04:47]	schestowitz	"
[04:47]	schestowitz	>> You might want to follow this thread:
[04:47]	schestowitz	>> https://dev.gnupg.org/T5169
[04:47]		-TechrightsSocial/#boycottnovell-social-dev.gnupg.org | T5169 gpg: Clarify output
[04:47]	schestowitz	>> 
[04:47]	schestowitz	>> Interesting reply from WK.
[04:47]	schestowitz	>>  For more of prodding into GnuPG, you can have a look at:
[04:47]	schestowitz	>>  https://dev.gnupg.org/p/glr/
[04:47]	schestowitz	>> poking into a lot of the warts in this codebase. :)
[04:48]		-TechrightsSocial/#boycottnovell-social-dev.gnupg.org | glr
● Dec 08
[05:16]	schestowitz	https://ipkitten.blogspot.com/2020/12/eqe-2021-further-details-on-examination.html?showComment=1607368496310
[05:16]	schestowitz	"
[05:16]		-TechrightsSocial/#boycottnovell-social-ipkitten.blogspot.com | EQE 2021: Further details on examination timings and paper format released - The IPKat
[05:16]	schestowitz	bobby
[05:16]	schestowitz	Most of what you written here Ned, I agree with it. However, candidates are heavily burden with IT requirements and other measures just to sit the exams. 
[05:17]	schestowitz	We are placing too much burden on candidates. It was a similar thing with PEB (although they eventually stripped back some of the requirements). So we need to be careful NOT to saddle candidates to adhere to requirements after requirements. 
[05:17]	schestowitz	Not all candidates can work at home e.g. small children at home. I don't know what is the perfect solution is but I do not agree with increasing the burden on candidates and also the EQEs needs to ensure that personal data are not collected.
[05:17]	schestowitz	Anonymous
[05:17]	schestowitz	I wish the PEB examiners and the PEB GB actually sat the exam this October. They would see a constant changing of rules whilst balancing home and work life at home and also having to prepare for exams that no one can be sure it would go ahead. 
[05:17]	schestowitz	Please see that 2020 was a horrible year to take the exams. The preparation time was badly affected by so many factors not least the very late changes and guidelines. 
[05:17]	schestowitz	Other organisations have recognised the difficulty in taking exams this year and have taken them into account such as university exams, A levels and GCSE and many more. 
[05:17]	schestowitz	PEB should seriously take this summer into account and understand the disruption many candidates have felt this year. 
[05:17]	schestowitz	If the chief examiner has a concern about candidates cheating, it should be raised appropriately and actually before any marking has taken place. Candidates has the right to explain if there are concerns.
[05:17]	schestowitz	My concern now is that rules are being changed whilst marking is underway which is completely unfair.
[05:17]	schestowitz	Ned Ludd
[05:17]	schestowitz	@bobby, that was the point I was making. In normal years , candidates only had to study and turn up to take the exam. They now have to worry about all the IT, and it is all adding extra stress.
[05:17]	schestowitz	The EQE committees present it as simply logging in on a computer at home (or anywhere) and taking the exam. They are slowly shifting all the burdens of organisation, environment and materials to the candidates.
[05:17]	schestowitz	3 months to go: there is no demo available, not allowing printing has been announced, and some papers are being split. Who knows what will be in the next communication.
[05:17]	schestowitz	Major changes should have been postponed until 2022 to give candidates the opportunity to work with it and to see if the timings are adequate.
[05:17]	schestowitz	I would like to know who (outside the examination committees) tested the A and B papers to see whether they could be done just as quickly digitally as with a paper copy. And the C with the extra 30 minutes. And the D2 with the extra 15 minutes.
[05:17]	schestowitz	And it worrying to see from the PEB that certain behaviors may be considered afterwards as cheating. There should be a lot a latitude on all sides this year with such changes until we all get used to it - the vast majority of candidates will not attempt to cheat in any way. It is not unusual to use every minute that you can to work on your answer.
[05:17]	schestowitz	Reply
[05:17]	schestowitz	Anonymous
[05:17]	schestowitz	The post by the chief examiner just shows us how confused the members of PEB are amongst themselves with its own rules and guidelines. How are candidates expect to know/understand when PEB are themselves utterly confused about their own guidelines.
[05:17]	schestowitz	Reply
[05:17]	schestowitz	Anonymous
[05:17]	schestowitz	Is Sarah Bloxall intending to clarify her comments suggesting candidates will fail for utilizing the additional exam time in the manner that they were advised to? Or should candidates just await their disqualification in March?
[05:17]	schestowitz	Reply
[05:17]	schestowitz	Blur
[05:17]	schestowitz	It seems utterly irresponsible to add to the anxieties already experienced by each trainee this year by suggesting that, because PEB appears to be unhappy with how they themselves set out the rules, candidates may be disqualified.
[05:17]	schestowitz	If the intention was for the breaks to be mandatory, a system should have been set up that enforces them. And if they wanted candidates to hand in their exams after the "normal" period, they should have clarified that if the whole 20 minutes for printing and scanning are not used, the exam should be submitted early.
[05:17]	schestowitz	I appreciate that PEB is not happy with the conduct of candidates, but the solution is not to blame candidates. Instead, they should reflect on their communication and do better next time.
[05:17]	schestowitz	Given the mental health toll this year has taken on everyone, especially candidates, I find the comments by the chief examiner irresponsible and deeply concerning.
[05:17]	schestowitz	CIPA should intervene, and PEB clarify their position, asap.
[05:17]	schestowitz	"
[05:17]	schestowitz	"Because Chris Mercer probably stands to make one of the biggest personal financial gains from so many failing in the current exam system. I'm happy to be proved wrong but I would like to see a full account in the Mercer review stating how much he does financially derive from his work on JDD et al."
● Dec 08
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● Dec 08
[09:17]	schestowitz	http://patentblog.kluweriplaw.com/2020/12/02/response-to-epo-consultation-dont-impose-oral-proceedings-by-videoconference/
[09:17]		-TechrightsSocial/#boycottnovell-social-patentblog.kluweriplaw.com | Response to EPO consultation: Dont impose oral proceedings by videoconference - Kluwer Patent Blog
[09:17]	schestowitz	"
[09:17]	schestowitz	Concerned observer
[09:17]	schestowitz	DECEMBER 2, 2020 AT 9:41 PM
[09:17]	schestowitz	My understanding is that CIPA did submit a response to the consultation. It is just that the response has not yet been made publicly available and so very few people are aware of its content. To my knowledge, the views of CIPAs membership were not surveyed prior to preparation and submission of the response. Make of that what you will.
[09:17]	schestowitz	LightBlue
[09:17]	schestowitz	DECEMBER 4, 2020 AT 10:00 AM
[09:17]	schestowitz	EPI also did not survey its membership before submitting its response. This is a perfectly normal way for institutes to work.
[09:17]	schestowitz	Concerned observer
[09:17]	schestowitz	DECEMBER 4, 2020 AT 1:56 PM
[09:17]	schestowitz	True enough. At least epi is now trying to remedy that shortcoming though.
[09:17]	schestowitz	Concerned observer
[09:18]	schestowitz	DECEMBER 4, 2020 AT 2:00 PM
[09:18]	schestowitz	CIPAs response has now been published:
[09:18]	schestowitz	https://www.cipa.org.uk/policy-and-news/consultation-responses/response-by-cipa-to-the-user-consultation-on-amendment-of-a15arpba/
[09:18]	schestowitz	To say the least, the response differs quite markedly from the responses of epi, EPLIT and Business Europe!
[09:18]		-TechrightsSocial/#boycottnovell-social-www.cipa.org.uk | Response by CIPA to the User Consultation on amendment of a15aRPBA | Chartered Institute of Patent Attorneys
[09:18]	schestowitz	Patent robot
[09:18]	schestowitz	DECEMBER 3, 2020 AT 9:44 AM
[09:18]	schestowitz	From the responses is also evident that until the Covid emergency is over, VICOs can be mandatory
[09:18]	schestowitz	Alessandro Cossu
[09:18]	schestowitz	DECEMBER 3, 2020 AT 9:59 AM
[09:18]	schestowitz	I was wondering whether and when all the responses to the consultation will be made available to the public; my firm also submitted comments but, as of today, I do not even know whether they were correctly received.
[09:18]	schestowitz	An EP Attorney
[09:18]	schestowitz	DECEMBER 3, 2020 AT 11:52 AM
[09:18]	schestowitz	Here are the comments from the epi:
[09:18]	schestowitz	https://patentepi.org/assets/uploads/documents/epi-reports/201126_epi%20Response%20to%20Consultation%20on%20Proposed%20Article%20RoPBA.pdf
[09:18]	schestowitz	MaxDrei
[09:18]	schestowitz	DECEMBER 3, 2020 AT 8:31 PM
[09:18]	schestowitz	Presumably, the EPO President, the Administrative Council, the BOAC ,the EPOs Boards of Appeal and the UK Chartered Institute of Patent Attorneys (CIPA) all share the opinion of the Rules of Civil Procedure of the Civil Courts of England and Wales, Rule 1.1, that the over-riding objective of any court system is to enable the court to deal with cases justly. Such an over-riding objective is correctly placed at para 1.
[09:18]	schestowitz	1 of the Rules. Compare Article 1 of the Basic Law in Germany, which itself recites what one might describe as an over-riding objective.
[09:18]	schestowitz	Reflect on what Adam Smith argued: that any human society needs ONLY two absolute imperatives if it is to survive and prosper. Everything else follows, provided these two essentials are adhered to. First, a system of easy taxes. By easy I take him to mean a system that commands broad acceptance and is perceived as fair.
[09:18]	schestowitz	The second imperative for a stable society is a functioning system for dispensing justice fairly. Smith wrote that in the 18th century. Not much change then, from then till the end of the 20th century, when Lord Woolf drew up the reformed CPR with its over-riding objective.
[09:18]	schestowitz	http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part01#:~:text=%20The%20overriding%20objective%20%201%20%281%29%20These,so%20far%20as%20is%20practicable%20%E2%80%93%20More%20
[09:18]		-TechrightsSocial/#boycottnovell-social-www.justice.gov.uk | PART 1 - OVERRIDING OBJECTIVE - Civil Procedure Rules
[09:18]	schestowitz	The question arises, to what extent is it compatible with such an over-riding objective to allow a TBA to decide, in its infinite wisdom, unrestrained by any other impediment, to decree that the decisive Oral Proceedings shall take place as a video conference. One gathers that CIPA sees absolutely no problem with allowing an individual Board such discretion. So who does? Anybody here?
[09:18]	schestowitz	Patent robot
[09:18]	schestowitz	DECEMBER 4, 2020 AT 2:07 PM
[09:18]	schestowitz	I also see no problem and I am not a CIPA member.
[09:18]	schestowitz	There is nothing in the EPA imposing oral proceedings to be held in person.
[09:18]	schestowitz	Kley Hansjrg
[09:18]	schestowitz	DECEMBER 3, 2020 AT 8:53 PM
[09:18]	schestowitz	Here is a comment from Hansjrg Kley Switzerland. This comment has been posted on http://www.patentepi.org and requires an epi account.
[09:18]	schestowitz	For all other interested perons please find my comment in German on
[09:18]	schestowitz	https://www.kley.ch
[09:18]		-TechrightsSocial/#boycottnovell-social-patentepi.org | Institute of Professional Representatives before the European Patent Office - epi
[09:18]	schestowitz	or on deep link
[09:18]		-TechrightsSocial/#boycottnovell-social-www.kley.ch - Bern - Zuerich - St. Gallen - Winterthur.
[09:18]	schestowitz	https://www.kley.ch/hansjoerg/patrecht/br_epa_2020Z11EP_2020-11-23.pdf
[09:18]	schestowitz	Attentive Observer
[09:18]	schestowitz	DECEMBER 3, 2020 AT 11:11 PM
[09:18]	schestowitz	It is a pity that epis contribution to the discussion on Art 14aRPBA20 was not mentioned in the blog. The position of epi is reasonable and acceptable.
[09:18]	schestowitz	From most of the comments published up to know, it becomes clear that Art 15a should at most be valid during the pandemic. I would even claim that not only after the pandemic, but as well during it, OP should only be held in form of ViCo if the parties agree.
[09:18]	schestowitz	Do not tell me that there is a major problem and justice would be denied. This is a fig leaf to justify discretionary measures which have the only purpose to get files done at any cost and at any rate.
[09:18]	schestowitz	The BA have been understaffed for many years and this was not the wish of the users, but only due to the former head of the EPO who considered the members of the BA a bunch of lazy people.
[09:18]	schestowitz	The throughput of files in DG1 has increased tremendously in the last years simply in order for the cash to flow in as quickly as possible. Examiners should grant as quickly as possible, so that the member states can get their annual fees as quickly as possible. Now we are even told that the EPO is nearly broke. I am awaiting this reason to be given to force OP in form of ViCo before the first instance.
[09:19]	schestowitz	That CIPA is in favour of OP as ViCo is not surprising. Some UK firms of representatives have been advertising for instance in LinkedIn about their capacity to hold OP in form of ViCo. It is for UK firms a possibility of gaining ground over firms sitting in Munich or having opened branches in Munich. In any case this should not be determining in whether OP can only be held in form of ViCo.
[09:19]	schestowitz	The argument of reducing the carbon foot footprint by not coming to Munich is at best fallacious. For parties not residing or having a place of business within the member states of the EPC they have to be represented by a qualified representative. Strictly speaking, there is thus only the necessity for a party to send one representative to any OP. This also apply to parties having residing or having a place of business within
[09:19]	schestowitz	an EPC member state.
[09:19]	schestowitz	It is therefore not necessary for a party to come to Europe or from the far end of it. All the costs linked with the travel of for instance non-EPC patent attorneys and the various staff members of companies cannot be determining in whether OP can only be held in form of ViCo. In any case those persons can at best be accompanying persons in the meaning of G 4/95, as they have no procedural right to speak.
[09:19]	schestowitz	Be it in presence or in ViCo, the bare minimum should be that the parties are sitting in front of full deciding body, be it a first instance division or a BA. Sitting in front of three individual images of members of the deciding body all sitting in different locations cannot be considered as holding a proper OP, whatever the management of the EPO or of the BA want us to believe.
[09:19]	schestowitz	Last but not least, what is valid before the BA should be mutatis mutandis valid for divisions of first instance. If the EPO and the BA want to force the parties to only have OP inform of ViCo, they should have the decency to amend the EPC, not just its rules of procedure. Only holding OP in form of ViCo is a major change of the letter and the spirit of the EPC.
[09:19]	schestowitz	Neither the president of the office, nor the chairman of the BA or of the BOAC have the legitimacy to alter the EPC in the way they are presently forcing upon the users of the EP system.
[09:19]	schestowitz	I very much doubt that the BA will publish the responses to the consultation. We might get a total number of entries, but no more. If the vast majority of the replies is negative, they will certainly not publish them or give a figure. Should the vast majority of the replies be positive, we might see them and get a figure.
[09:19]	schestowitz	When introducing the obligation for parties to consult the register before coming to OP before OD, the president claimed that it was to answer the wish of the users. It would be interesting to know which users were meant. I do not know any. When doing the same for forcing people to check whether the location of an OP on the premises of the EPO, the BA did not even try to hide behind the users.
[09:19]	schestowitz	In the early days of the EPO Anmelderfreundlichkeit, best translated by user friendliness, was a key objective and contributed greatly to the success of the EPO. Nowadays the users of the EP system have been degraded to fee contributors whereby the management of the EPO and of the BA decides ex-officio what is good for them. Enough is enough!
[09:19]	schestowitz	Another observer
[09:19]	schestowitz	DECEMBER 4, 2020 AT 11:06 AM
[09:19]	schestowitz	To Attentive Observer:
[09:19]	schestowitz	Why does mandatory ViCo alter the EPC?
[09:19]	schestowitz	The EPC requires oral proceedings, but it doesnt say face-to-face. ViCo are proceedings, and they are oral.
[09:19]	schestowitz	Concerned observer
[09:19]	schestowitz	DECEMBER 4, 2020 AT 1:38 PM
[09:19]	schestowitz	It alters the EPC because it changes the interpretation afforded to Article 116 EPC in the case law of the Boards of Appeal.
[09:19]	schestowitz	The Boards are afforded interpretative supremacy with regard to the provisions of the EPC. The President has no power to overturn interpretations of the EPC established in the case law of the Boards of Appeal. Whilst G 3/19 may have muddied the waters, the same is true for the AC, except in the circumstances where they are exercising their quasi-legislative function under Article 33(1)(b) EPC (to bring the EPC into line with 
[09:19]	schestowitz	an international or EU law relating to patents which exception very obviously does not apply in these circumstances).
[09:19]	schestowitz	I trust that this answers your question. I would like to pose questions in return:
[09:19]	schestowitz	In theory, do you believe that mandatory TELEconference proceedings would satisfy the oral proceedings requirement of Article 116 EPC? And if not, why not?
[09:19]	schestowitz	Based upon my experience, when technical issues arise (which is relatively common), VICOs can end up resembling something much closer to a teleconference than a face-to-face meeting.
[09:19]	schestowitz	Patent robot
[09:19]	schestowitz	DECEMBER 4, 2020 AT 2:04 PM
[09:19]	schestowitz	With a videoconference you see exactly the same parts of the body of all participants you would see in OPs in person.
[09:19]	schestowitz	You also hear exactly the same words.
[09:19]	schestowitz	Actually, videoconferences in opposition are even better, since you can see all participants (OD and representatives) at the same time, which is not possible in person, unless you have four eyes.
[09:19]	schestowitz	Concerned observer
[09:19]	schestowitz	DECEMBER 4, 2020 AT 3:12 PM
[09:19]	schestowitz	Robot, it seems that you do not wish to provide direct answers to my questions. Why is that?
[09:19]	schestowitz	Indirectly, you have provided an answer (of sorts). That is, it seems that you view participation by VICO as providing an advantage over participation in person. Can I therefore presume that you would be perfectly happy to participate by VICO in opposition (appeal) proceedings conducted in the hybrid mode, where (according to their wishes) the other side participates in person?
[09:19]	schestowitz	Also, can I presume that, at least after the end of the pandemic, you would have no problem with a set-up in which any party who wishes to do so can participate EITHER in person OR by VICO? If not, why not?
[09:19]	schestowitz	Patent robot
[09:19]	schestowitz	DECEMBER 4, 2020 AT 5:16 PM
[09:19]	schestowitz	I thought that I responded to all your questions. If I am wrong, please repeat your questions, thanks.
[09:19]	schestowitz	I also confirm you that I am happy with hybrid OPs.
[09:19]	schestowitz	Concerned observer
[09:19]	schestowitz	DECEMBER 4, 2020 AT 6:01 PM
[09:19]	schestowitz	Robot, I am surprised that you do not realise why you failed to answer my questions. To repeat the questions: Do you believe that mandatory teleconference proceedings would satisfy the oral proceedings requirement of Article 116 EPC? And if not, why not?
[09:20]	schestowitz	Pointing to what you perceive as benefits of VICOs (or to similarities between VICOs and in-person proceedings) is no answer to these questions. To be clear, I am interested in how far you believe it is permissible to stretch (in an Article of the RPBA) the interpretation of the phrase oral proceedings in Article 116 EPC.
[09:20]	schestowitz	I am glad to hear that you would be happy with hybrid proceedings. However, I note that you did not answer my further question about in-person proceedings being available to those who want them. Perhaps you would like to do that now.
[09:20]	schestowitz	Patent robot
[09:20]	schestowitz	DECEMBER 4, 2020 AT 6:34 PM
[09:20]	schestowitz	Do you believe that mandatory teleconference proceedings would satisfy the oral proceedings requirement of Article 116 EPC?: Yes but hearings via Vico or in person are preferable since you can see who is speaking.
[09:20]	schestowitz	I am interested in how far you believe it is permissible to stretch (in an Article of the RPBA) the interpretation of the phrase oral proceedings in Article 116 EPC.: I already wrote that Art. 116 EPC does not explicitly impose OPs in person
[09:20]	schestowitz	I note that you did not answer my further question about in-person proceedings being available to those who want them.: IMHO all participants (EPO/BoA members included) should be free to attend by ViCo or in person
[09:20]	schestowitz	Kay
[09:20]	schestowitz	DECEMBER 4, 2020 AT 8:34 PM
[09:20]	schestowitz	With a videoconference you see exactly the same parts of the body of all participants you would see in OPs in person.
[09:20]	schestowitz	You also hear exactly the same words.
[09:20]	schestowitz	Nope.
[09:20]	schestowitz	I don hear what a party and the client discuss among themselves, microphone off.
[09:20]	schestowitz	Nope, I do not see the same parts.
[09:20]	schestowitz	A lot of the body language is invisible in the Video Conference.
[09:20]	schestowitz	On top, as examiner, I am too busy making notes, or checking the passages in documents referred to, and therefore cannot see the parties AT ALL, not even in the corner of my eyes.
[09:20]	schestowitz	I have all documents on screen only, in a multitude of different windows for the application as filed, amended claims, current request, preliminary opinion, and any filed arguments with the latest request and since then, plus a program to take notes of the arguments in.
[09:20]	schestowitz	Nope, I prefer to see the parties (and my colleagues) in person, also because often the parties use the breaks to discuss among themselves, and often come to an agreement both parties can live with.
[09:20]	schestowitz	I fear that last element is totally lost now.
[09:20]	schestowitz	And no, I dont write that because I know a local hotel owner..
[09:20]	schestowitz	Another observer
[09:20]	schestowitz	DECEMBER 4, 2020 AT 4:54 PM
[09:20]	schestowitz	Concerned Observer:- it changes the interpretation afforded to Article 116 EPC in the case law of the Boards of Appeal.
[09:20]	schestowitz	Whereabouts in the case law of the Boards of Appeal?
[09:20]	schestowitz	And by the way, this thread is in response to changes proposed by the Boards of Appeal themselves.
[09:20]	schestowitz	Concerned observer
[09:20]	schestowitz	DECEMBER 4, 2020 AT 6:16 PM
[09:20]	schestowitz	See, for example, T677/08:
[09:20]	schestowitz	According to Article 116 EPC, an applicant has a right to oral proceedings which means he has A RIGHT TO APPEAR IN PERSON before the Examining Division in order to discuss the case; and
[09:20]	schestowitz	Article 116 EPC gives the applicant the right to present his case orally before the Examining Division but does NOT give him the right to do so in the form of a video conference.
[09:20]	schestowitz	To be precise, the proposal to amend the RPBA does NOT come from the Boards of Appeal (ie the EPOs judiciary). Instead, it comes from the Boards of Appeal Committee (BoAC) and the President of the Boards of Appeal.
[09:20]	schestowitz	BoAC is a subsidiary body of the Administrative Council:
[09:20]	schestowitz	https://www.epo.org/about-us/governance/administrative-council/bodies/boards-of-appeal-committee.html
[09:20]		-TechrightsSocial/#boycottnovell-social-www.epo.org | EPO - Boards of Appeal Committee
[09:20]	schestowitz	As set out in Rule 12a EPC, the President of the Boards of Appeal is appointed by the AC on a joint proposal made by the BoAC and the EPO President.
[09:20]	schestowitz	Neither BoAC nor the President of the Boards of Appeal has the authority to overturn an interpretation of the EPC established by the EPOs judiciary.
[09:20]	schestowitz	German Examiner
[09:20]	schestowitz	DECEMBER 4, 2020 AT 6:43 PM
[09:20]	schestowitz	One further question: would a literal understanding of Art 116 EPC possibly even allow to skip the video-part? After all, for oral proceedings a telephone is sufficient 
[09:20]	schestowitz	MaxDrei
[09:20]	schestowitz	DECEMBER 4, 2020 AT 11:08 AM
[09:21]	schestowitz	Attentive, can you clarify your remark Do not tell me thatjustice would be denied? I read it as a rebuff to my comment of December 3rd, in which I write of the over-riding objective to decide cases justly and I am surprised that you feel this way. Have I misunderstood your comment, perhaps?
[09:21]	schestowitz	In England, the Court Service is making heavy use of ViCo but I cannot imagine a full trial of the action being performed in England by ViCo, if only because of the centrality to that trial of the cross-examination of witnesses in front of the eyes of the judge. One shudders to think of the opportunities for putting words in the mouth of the witness, if that witness is visible to the judge only over a video link.
[09:21]	schestowitz	Now I know that oral proceedings at the EPO are not like a full trial of the action in England. Cases at the EPO are supposed to be written proceedings. Nevertheless, Im still sceptical whether ViCo is up to the task of rendering justly the ultimate decision, in a hard-fought and legally complex case which is going to settle the fate of the patent across the whole of Europe.
[09:21]	schestowitz	But if the RPBA were to be amended to include from the get go a mandatory requirement with as much detail as Section 1.1 of the English CPR, that might be enough to give Board Chairpersons serious reasons to pause, hesitate, think carefully, weigh up the consequences before they decide that the oral proceedings must be done by ViCo.
[09:21]	schestowitz	Of course, given the pressure from management, it will require Boards to grow a pair as the saying goes, to grasp where their duty lies. But hey, thats not something special to BoA members. These days, most every doctor has to choose, every day, between honouring his (or her) Oath and keeping on the right side of management. And, I know, its all very well for patent attorneys in private practice to 
[09:21]	schestowitz	preach: they arent sitting in the hot seat, required to decide cases with decisions that can destroy their career prospects.
[09:21]	schestowitz	Patent robot
[09:21]	schestowitz	DECEMBER 4, 2020 AT 1:59 PM
[09:21]	schestowitz	This year I personally attended (I was the applicant, not in a patent case) several virtual hearings, including a final hearing, in England, where judges, parties, barristers, solicitors, experts and witnesses were all connected by videoconference (Google Meet).
[09:21]	schestowitz	Nobody even thought that the right to be heard was at stake.
[09:21]	schestowitz	MaxDrei
[09:21]	schestowitz	DECEMBER 4, 2020 AT 2:13 PM
[09:21]	schestowitz	Interesting comment from Patent Robot. Of course, if we are all blessed with his facility, to read with 100% accuracy what every other ViCo participant was thinking, that does change the assessment.
[09:21]	schestowitz	I hope to hear from others with profound and wide-ranging experience of ViCo when used in final trials of patent validity in England. Can they corroborate what Robot asserts?
[09:21]	schestowitz	Patent robot
[09:21]	schestowitz	DECEMBER 4, 2020 AT 2:58 PM
[09:21]	schestowitz	In England I also attended several hearings in person and I can guarantee you that it was more difficult to hear and see the participants, first of all beacuse I could only see the face of the judge and the shoulders of all other participants.
[09:21]	schestowitz	Also the audio quality is better via ViCo, since you can adjust the volume.
[09:21]	schestowitz	Patent robot
[09:21]	schestowitz	DECEMBER 4, 2020 AT 11:24 AM
[09:21]	schestowitz	It is curious to see that most patent attorneys fear innovation
[09:21]	schestowitz	Another EP attorney
[09:21]	schestowitz	DECEMBER 4, 2020 AT 12:50 PM
[09:21]	schestowitz	Most patent attorneys dont fear innovation, however, many of them run their practices near an EPO site and the location gives them competitive benefit over the ones living abroad. It is a benefit that I wouldnt be willing to give away without a battle. German (near Munich) and Dutch attorneys dont have anything to win in this battle.
[09:21]	schestowitz	I dont say that this is the only reason, however, it is a significant reason. After all, we European patent attorneys, are running our own businesses too.
[09:21]	schestowitz	Patent robot
[09:21]	schestowitz	DECEMBER 4, 2020 AT 1:45 PM
[09:21]	schestowitz	I understand that EPAs working in Munich and Den Haag lose their benefit because of videoconferences but their fight seems to me as those done in the past by the producers of coaches, gas lamps, telegraphs, slide rules, etc.
[09:21]	schestowitz	Videoconferences put all EPAs at the same level, without any unwarranted advantage.
[09:21]	schestowitz	Concerned observer
[09:21]	schestowitz	DECEMBER 4, 2020 AT 1:49 PM
[09:21]	schestowitz	Well, instead of making ad hominem comments like that (which, lets face it, represent a tactic of playing the man and not the ball), how about contributing a little light to the debate?
[09:21]	schestowitz	For example, would you be able to elucidate readers of this blog about where they can find the necessary legal basis for the new interpretation of Article 116 EPC that is evident in proposed Article 15a RPBA? Or would you care to explain why Business Europe is wrong to be concerned about other aspects of the proposed change (such as issues regarding public access, possible recording and company security policies relating to 
[09:21]	schestowitz	software)?
[09:21]	schestowitz	Patent robot
[09:21]	schestowitz	DECEMBER 4, 2020 AT 2:41 PM
[09:21]	schestowitz	Art. 116 EPC does not state that oral proceedings shall be held at the premises of the EPO, so that the interpretation given by the Boards of Appeal is IMHO correct.
[09:21]	schestowitz	All technical issues of videoconferencing raised by BusinessEurope can be easily solved in the short term and the improvements during the last 8 months in this fieald are already substantial.
[09:21]	schestowitz	I also do not see any issue in videorecordings of all public hearings.
[09:21]	schestowitz	German Examiner
[09:22]	schestowitz	DECEMBER 4, 2020 AT 4:21 PM
[09:22]	schestowitz	Personally, I would prefer Vicos as an option (alas, at the DPMA we dont have this option, yet(?)).
[09:22]	schestowitz	Making Vicos mandatory does not leave room to have in-person oral proceedings, when necessary. After all, as an engineer I plan for the worst case.
[09:22]	schestowitz	A few years back there were opposition proceedings for one of the high stakes IPcom-patents. One of the offices largest rooms was booked for 4 days, there were at least 5 opponents. Such proceedings are a nightmare, even if you assume there are no witnesses to hear. I dont think a Vico would be helpful there, so the format should be left to the discretion of the OD and the participants. I could imagine as well, that in 
[09:22]	schestowitz	opposition proceedings one party is on location with the OD, the other party is connected by Vico
[09:22]	schestowitz	Patent robot
[09:22]	schestowitz	DECEMBER 4, 2020 AT 6:17 PM
[09:22]	schestowitz	I attended hearings (not at the EPO) with more than ten participants in person and by ViCo and, provided that the judge is able to mute participants, ViCos are better, since you can see all participants de visu, you have less background noise, more space, more oxygen, cleaner air and you can also easily communicate with colleagues and clients
[09:22]	schestowitz	German Examiner
[09:22]	schestowitz	DECEMBER 4, 2020 AT 6:41 PM
[09:22]	schestowitz	Well, then apparently the ViCo-systems you are using are better than the ones I know. From the systems I know, I would not say it is possible to see 3 (before the DPMA up to 5, including legal member and Schriftfhrer) members of the OD plus at least one participant per opponent in a meaningful way
[09:22]	schestowitz	Patent robot
[09:22]	schestowitz	DECEMBER 5, 2020 AT 5:32 PM
[09:22]	schestowitz	UK Courts use Google Meet. Also Zoom allows multi-party ViCos and others are also available.
[09:22]	schestowitz	German Examiner
[09:22]	schestowitz	DECEMBER 6, 2020 AT 12:04 PM
[09:22]	schestowitz	I know both of them and also MS Teams. My expereince so fa has been underwhelming (at least at my home connection with 50 Mb/s).
[09:22]	schestowitz	Peter Parker
[09:22]	schestowitz	DECEMBER 4, 2020 AT 12:58 PM
[09:22]	schestowitz	I think the ViCos will be in particular a problem if we have witnesses or other evidence that is not a patent document. I think a fair assessment of such evidence in a ViCo is simply not possible. Granted, this does not happen too often, but the number of cases with such evidence is also not insignificant.
[09:22]	schestowitz	Patent robot
[09:22]	schestowitz	DECEMBER 4, 2020 AT 1:50 PM
[09:22]	schestowitz	You can hear and see witnesses perfectly well also via ViCos (they are used even in criminal cases).
[09:22]	schestowitz	I agree instead that OPs must be held in person when a sample must be examined live (e.g. manipulation). However, in this case, if the sample cannot be brought to the EPO, e.g. if the sample is a big machine, then OPs should be held where the sample is located.
[09:22]	schestowitz	Attentive Observer
[09:22]	schestowitz	DECEMBER 4, 2020 AT 6:20 PM
[09:22]	schestowitz	Dear Max Drei,
[09:22]	schestowitz	I am in full agreement with you thoughts about the over-riding objective to decide cases justly. What I meant is that justice cannot be denied when a file takes a year more to be dealt with. Mentioning that the necessity of justice requires OP to be held mandatorily in the form of ViCos boils down to an insult when such a thought is uttered by the actual head of the EPO. At the EPO, be it in appeal or in first instance, the 
[09:22]	schestowitz	aim is to increase the throughput of files and nothing else.
[09:22]	schestowitz	I can share your doubts that an OP in form of a ViCo is up to the task of rendering justly the ultimate decision, in a hard-fought and legally complex case which is going to settle the fate of the patent across the whole of Europe.
[09:22]	schestowitz	In view of the self-imposed restrictions of the BA in their RPBA, the battle has been transferred to the first instance. This is forgotten much too often. It is very hard to get a decision set aside by a BA if you have not done everything possible in the first instance. And in some cases it is difficult to achieve this goal. In view of their production objectives, it is very rare that a BA allows a change in the proceedings. 
[09:22]	schestowitz	And yet sometimes one cannot refrain the feeling that the RPBA are simply misused in order to get read of a file.
[09:22]	schestowitz	Concentrating on the BA as they are the final step of the procedure is forgetting that the track is laid in first instance. That is why it is so important to have proper OP and not a substitute in form of a ViCo, be it in first instance or in appeal.
[09:22]	schestowitz	I have great respect towards the statements in Section 1.1 of the English CPR, but thinking that such a text will be adopted by the BA, or even apply in first instance is for me no more than a dream. As said above, at the EPO, be it in appeal or in first instance, the aim is to increase the throughput of files and nothing else. Nothing just can be seen in this aim.
[09:22]	schestowitz	I agree with you that the BA should grow a pair, but in view of the pressure to get read of the backlog, this will remain a wish. They could do so if they were really independent. But it is a matter of fact that the changes brought about with the reform of 2016 has not even increased the perception of their independence.
[09:22]	schestowitz	On the other hand, I fear that all the replies to the public inquiry not being in favour of OP in form of a ViCo will be like water flowing from a ducks back. The management of the EPO and of the BA will only take into account positive replies like the one of CIPA. In this respect I feel that CIPA is antagonising the rest of the profession in Europe best represented by epi. Solidarity with the rest of Europe is however not
[09:22]	schestowitz	something to be expected from the UK in this time of Brexit.
[09:22]	schestowitz	What is a disgrace is that the deciding body, be it in appeal or in first instance is not sitting together. If there is a three person body to act, a reasonable interpretation of Art 18, 19 and 21 requires that those three person sit together. Anything else boils down to discussing with the first member or the rapporteur. The grant procedure has already be degraded to a one man procedure, and if you were thinking that this 
[09:22]	schestowitz	will not become the case in the BA, you are simply not realistic enough.
[09:22]	schestowitz	Patent Robot (btw what a strange name) might be satisfied with using what is technically possible without thinking any further. There are plenty of other who beg to differ and want something better.
[09:23]	schestowitz	It is not only when a sample is to be examined that OP in person are required. This is also very rare and mostly useless as the time print of the sample is not known.
[09:23]	schestowitz	When taking part in OP in person there is always a certain atmosphere in the room. That the situation is tense between proprietor and opponent is one thing, and even sometimes in case of a plurality of opponents they might have a common aim that is to kill the patent, but they are also competitors and act accordingly. All this in not something to be felt in a ViCo. An OP in ViCo is no more than a bad substitute for a proper 
[09:23]	schestowitz	OP. The pandemic might force us to do so, but once the pandemic is over, OP in form of ViCo should remain an exception for which all parties have to agree.
[09:23]	schestowitz	It is for ViCo like for lots of other things, what is technically feasible is far from optimum. One aspect which should never be forgotten: if people have not met before a ViCo, it might end up with all parties being frustrated as there is no real communication, but even having met before is not a guaranty of success. I have witnessed this times and times.
[09:23]	schestowitz	This has nothing to do with the ViCo as such, but is elementary psychology. Denying this aspect can backfire. On paper all is OK, but reality can take a different turn. And in patents we have to do nearly only with paper, so for once lets face reality.
[09:23]	schestowitz	Patent robot
[09:23]	schestowitz	DECEMBER 4, 2020 AT 6:54 PM
[09:23]	schestowitz	Patent Robot (btw what a strange name) might be satisfied with using what is technically possible without thinking any further.: well, since we are in a Covid emergency, I think that Vico is the only technical possible way to have oral proceedings for the next years, do you agree?
[09:23]	schestowitz	Anon Y. Mouse
[09:23]	schestowitz	DECEMBER 4, 2020 AT 6:31 PM
[09:23]	schestowitz	I share the misgivings of many of the commenters here about making ViCo proceedings the default and granting the various instances of the EPO the power to mandate parties (against their will) to participate remotely. The possibility of ViCo proceedings is to be welcomed, and is surely a historical inevitability. But to dispense with in-person hearings almost altogether, and to remove the element of choice from parties in this
[09:23]	schestowitz	regard, is not welcome.
[09:23]	schestowitz	However, I really do not feel there is any mileage in an argument based on Article 116 EPC. Oral proceedings are surely just that: proceedings in which submissions are made orally, in contrast to written proceedings. ViCo or indeed telephone conferences surely meet the requirement of being oral proceedings in that regard. I struggle to see how it can be seriously argued otherwise. I think arguments based on 
[09:23]	schestowitz	Article 113 EPC are on similarly shaky ground except in the case of severe connection difficulties which can be proven appropriately.
[09:23]	schestowitz	Whether the EPO *can* impose this change (insofar as the EPC does not explicitly prohibit it) is a different question from whether the EPO *should* do so.
[09:23]	schestowitz	Extraneous Attorney
[09:23]	schestowitz	DECEMBER 4, 2020 AT 6:50 PM
[09:23]	schestowitz	@Patent robot :
[09:23]	schestowitz	Re your assertion (they [ViCos] are used even in criminal cases): at least one supreme court of a European country has just curtailed their use.
[09:23]	schestowitz	That supreme court is the French Council of State, which just last Friday has granted an emergency request to stay the use of ViCos in criminal trials. The ruling states that allowing the use of ViCos in a criminal trial seriously and manifestly violate the rights of the defense and the right to a fair trial.
[09:23]	schestowitz	Source (in French) : https://www.conseil-etat.fr/actualites/actualites/le-juge-des-referes-suspend-la-possibilite-d-utiliser-la-visio-conference-lors-des-audiences-devant-les-cours-d-assises-et-les-cours-criminelles
[09:23]	schestowitz	Of course, the equivalent in the EPC of the right to a fair trial is the right to be heard referred to in Article 113 EPC.
[09:23]	schestowitz	This, at the very least, should incite everyone to pause for more than a moment before enacting an amendment to the RPBA which allows a ViCo to be forced on the parties without their consent.
[09:23]		-TechrightsSocial/#boycottnovell-social-www.conseil-etat.fr | Le juge des rfrs suspend la possibilit dutiliser la visio-confrence lors des audiences devant les cours dassises et les cours criminelles
[09:23]	schestowitz	As others have already stated, it is another matter when all the parties ask for, and agree to, a ViCo. In essence, by doing so, they waive their right to a physical hearing.
[09:23]	schestowitz	Patent robot
[09:23]	schestowitz	DECEMBER 5, 2020 AT 5:38 PM
[09:23]	schestowitz	Just copied from the ECHR website
[09:23]	schestowitz	On account of the Covid-19 health crisis the Court has had to introduce special measures for holding its public hearings, valid until further notice. All oral submissions will be made by videoconference, and hearings at the Human Rights Building will not be open to the public. However, since all hearings are filmed in their entirety, the video recording will be available on the Courts website the day after each hearing.
[09:23]	schestowitz	P.S.: revoking a valid patent is the same as sending an innocent to jail?
[09:23]	schestowitz	MaxDrei
[09:23]	schestowitz	DECEMBER 4, 2020 AT 7:14 PM
[09:23]	schestowitz	Thanks Attentive. You and I know who each other is, but neither of us knows who Patent Robot is. For the time being, I am assuming he is a shill, bought and paid for by EPO management.
[09:23]	schestowitz	His comments on attending proceedings in England make no sense to me. I renew my invitation to any English litigators reading this thread to comment on the notion of imposing on the parties in dispute a final trial done wholly by ViCo technology. My suspicion that it interferes with justice by allowing witnesses to be manipulated by persons outside the field of view of the camera, while they are giving evidence. Crib sheets, 
[09:23]	schestowitz	teleprompters, hand-written key words on pieces of paper. I dont know. You tell me.
[09:23]	schestowitz	But perhaps even now, in conventional oral proceedings, witnesses are being fitted up with in-ear hearing aids? I dont know, Im not a litigator, or an expert in preparing witnesses to testify in open court. Is anybody there?
[09:23]	schestowitz	Where you and I, Attentive, might differ is on the importance of the atmosphere in the room where oral proceedings are held. I would hope that Boards and Divisions are not prejudiced by their subjective feelings that one party is confident of winning and the other side is scared. This is not a good thing. Such prejudice is lessened, when the proceedings are conducted by ViCo.
[09:23]	schestowitz	The point about trials in England is, of course, that the judge comes to the bench after 20+ years of serving as an advocate. No advocate pulls the wool over the eyes of a judge in England. The judge knows full well all the psychological tricks played by clever lawyers. Thats one of the most important factors that enable a court to decide a case justly. Then, of course, theres the point that, in England, on appeal
[09:23]	schestowitz	 the facts are more or less sacred, and not reviewable on appeal. The debate at appeal level is dry and legal, there arent any witnesses, and for those very reasons, few cases go to appeal. All very different though, at the EPO. To be frank, Im sceptical whether judges at the EPO will be alive to all the tricks that lawyers can play, in rooms hundreds of Km distant from where the TBA members are sitting, during the 
[09:23]	schestowitz	course of a ViCo.
[09:23]	schestowitz	LightBlue
[09:24]	schestowitz	DECEMBER 4, 2020 AT 11:39 PM
[09:24]	schestowitz	Max, your comment regarding another poster is beneath contempt.
[09:24]	schestowitz	On the point of the UK judge requiring the prescence of the witnesses, please read https://www.bailii.org/ew/cases/EWHC/Patents/2020/2562.html
[09:24]	schestowitz	As another aflicted by declining hearing, the use of the volume control in ViCos is a godsend, on a level of having simultaneous translation provided but listening to the original language through the headphones.
[09:24]		-TechrightsSocial/#boycottnovell-social-www.bailii.org | Edwards Lifesciences Corporation & Anor v Meril GmbH & Anor [2020] EWHC 2562 (Pat) (29 September 2020)
[09:24]	schestowitz	MaxDrei
[09:24]	schestowitz	DECEMBER 5, 2020 AT 3:37 PM
[09:24]	schestowitz	Blue, you amaze me. As somebody on one of the U.S. patent law blogs pointed out to me many moods ago, everybody has an agenda. Read Robot and ponder (like I did) what their agenda might be. With your beneath contempt dismissal of my words you risk being thought of as a workmate of Robot.
[09:24]	schestowitz	As for your Link to the case in England, it notes that the number of persons representing each party, physically in the room with the judge, was capped at six. What is your point?
[09:24]	schestowitz	LightBlue
[09:24]	schestowitz	DECEMBER 6, 2020 AT 9:37 AM
[09:24]	schestowitz	An earlier comment:
[09:24]	schestowitz	In England, the Court Service is making heavy use of ViCo but I cannot imagine a full trial of the action being performed in England by ViCo, if only because of the centrality to that trial of the cross-examination of witnesses in front of the eyes of the judge. One shudders to think of the opportunities for putting words in the mouth of the witness, if that witness is visible to the judge only over a video link.
[09:24]	schestowitz	The judgement of Colin Birss:
[09:24]	schestowitz	Two witnesses attended in person to be cross-examined and the other four attended by the video conference system. Some participants were physically situated in England and Wales and others were overseas, including in the USA. The four remote witnesses were all in the USA.
[09:24]	schestowitz	Patent robot
[09:24]	schestowitz	DECEMBER 7, 2020 AT 10:54 AM
[09:24]	schestowitz	Just copied from the ECHR website
[09:24]	schestowitz	On account of the Covid-19 health crisis the Court has had to introduce special measures for holding its public hearings, valid until further notice. All oral submissions will be made by videoconference, and hearings at the Human Rights Building will not be open to the public. However, since all hearings are filmed in their entirety, the video recording will be available on the Courts website the day after each hearing.
[09:24]	schestowitz	Patent robot
[09:24]	schestowitz	DECEMBER 5, 2020 AT 6:53 PM
[09:24]	schestowitz	Thanks Attentive. You and I know who each other is, but neither of us knows who Patent Robot is. For the time being, I am assuming he is a shill, bought and paid for by EPO managementBut perhaps even now, in conventional oral proceedings, witnesses are being fitted up with in-ear hearing aids? I dont know, Im not a litigator, or an expert in preparing witnesses to testify in open court. Is anybody there?
[09:24]	schestowitz	MaxDrei, pleas consider that the EPO just deals with patent validity and has only two instances (I do not consider petitions as a real third instance), flawed because of art. 15 EPC. Outside the EPO there are real tribunals dealing also with patent infringement, trade secrets, copyright, designs, etc., even in criminal cases, where oral proceedings last a few hours, not days as at the EPO.
[09:24]	schestowitz	I cannot see a better court where ViCo should be compulsory.
[09:24]	schestowitz	MaxDrei
[09:24]	schestowitz	DECEMBER 6, 2020 AT 11:08 AM
[09:24]	schestowitz	Well, Robot, thats certainly revealing of your position. At the EPO, you assert, because of the presence within the EPC of its Article 15, henceforth it should be made compulsory to hold ALL oral proceedings by video conference. Are you envisaging an Executive Order order from the Office of the President, directed at the BoAC?
[09:24]	schestowitz	Might you give me a reply to my question to you on the Edwards case in England? You cited it as evidence for imposing ViCo on full trials and I pointed out in reply that the judge in that case capped at 6 the number of persons from each party that could be physically present with him in the room.
[09:24]	schestowitz	My position is that ViCo is OK, but only to the extent that it does not prejudice the over-riding objective of dealing with cases justly. See the English Rules of Civil Procedure and the attendant case law, to find out what justly means. Speed is one factor, which is why C19 is hastening the use of ViCo. But compulsory, for all proceedings, now and for ever? Is that what you argue? It makes me even more sceptical about 
[09:24]	schestowitz	your agenda here, and who is driving it.
[09:24]	schestowitz	Patent robot
[09:24]	schestowitz	DECEMBER 6, 2020 AT 7:22 PM
[09:24]	schestowitz	As I wrote several times here, I think that ViCOs should be compulsory until the Covid emergency is over, after which all participants (including EPO/BoA members) should be free to choose whether to attend in person or by ViCo.
[09:24]	schestowitz	Haviltex
[09:24]	schestowitz	DECEMBER 4, 2020 AT 7:50 PM
[09:24]	schestowitz	To add my two cents to ViCo hearings from a national Dutch perspective
[09:24]	schestowitz	Dutch patent litigation, taking the continental approach, is very much a written procedure. Filing briefs and evidence according to fixed deadlines, culminating in a court hearing of half a day (shorter or longer, depending on the cases). In these COVID-19 times, nothing changed, except for the hearing. And, I would add, in some aspects for the better. The hearing used to include 1 1/2 hour for each party to recapitulate 
[09:24]	schestowitz	their case, often just pleading their written notes, followed by some back and forth with the court (and if matters were particularly in dispute some subdued but, often, polite yelling). Now, the Dutch patent court having switched to ViCo, the hearings are reduced to a Q&A of the court only and a short reply and rejoinder from the parties. The 1 1/2 hour written notes are filed two days before the hearing, while the 
[09:24]	schestowitz	defendant can file a written reply to the plaintiffs notes before the hearing (though this has not been the rule in all cases; the procedure has been evolving).
[09:24]	schestowitz	Some pros? At the hearing the court seems in my, granted, limited ViCo experience to get to the heart of the matter (at least how they see it) more openly and quickly. Skipping the 2x 1 1/2 oral pleadings, and putting their finger on where it hurts. It reminds me of the German style hearings, where the court starts to provide its preliminary view on the case, and sets a hurdle for the party who did not 
[09:24]	schestowitz	convince them in the written part of the proceedings. A good presiding judge will make sure all parties are given sufficient time to answer the courts questions, argue- within procedural limits any remaining points, and finish the hearing within a reasonable time (and shorter then pre-ViCo).
[09:25]	schestowitz	Some cons? Aside from the (self-serving) interest of a litigator wanting to plead his/her case to the fullest extent, the hearing does become static. One cannot look the judges in the eye or really see their response to the arguments pleaded (sometimes simply because the camera set-up results in small black robes without distinguishable faces). A fair hearing (or, in crudely translated Dutch/English, a hear and rebuttal
[09:25]	schestowitz	 should not be limited to what is expressed orally, but also include what is expressed physically. The latter can be hard to read in the technological translation of a ViCo. Is this a minor point (procedurally speaking)? It seems, but I think not, at least not so much as to make ViCos mandatory (e.g. even if one party wants a hearing in person) in a post-COVID era.
[09:25]	schestowitz	That being said, these times have shown the Dutch court to be flexible and willing to innovate in the interest of parties getting a decision within a reasonable time. And, some of the current experiences may be used if we can get back to normal. For example, continue with filing written pleading notes, start the physical hearing with a Q&A, but maybe provide the parties with some more time to make their 
[09:25]	schestowitz	arguments then in these ViCo-settings.
[09:25]	schestowitz	So much for the Dutch experienceand all of this depends on having a good ViCo connection. Not pleading your case from your home office while your kid is draining the bandwidth with playing some multi-person shooter game. I have seen the disadvantage of a bad connection not-gaming related, probably in a recent EPO case. It does mess up the flow of your argument and your case.
[09:25]	schestowitz	Curious
[09:25]	schestowitz	DECEMBER 4, 2020 AT 9:16 PM
[09:25]	schestowitz	Is anyone aware of an appeal case where an applicant in response to summons to hold oral proceedings by video-conference has unsuccessfully requested to hold face-to-face oral proceedings and questions the competence of the president to impose oral proceedings by ViCo / alleges a violation of the right to be heard?
[09:25]	schestowitz	Attentive Observer
[09:25]	schestowitz	DECEMBER 4, 2020 AT 9:39 PM
[09:25]	schestowitz	Dear Max Drei,
[09:25]	schestowitz	Please do not be mistaken. When I have been talking about the atmosphere, I never inferred that a BA or a Division would or should be prejudiced by subjective feelings about the parties. This would be totally wrong! After all, whether for a BA or a division, its members will get their money whatever the outcome will be. A BA or a division should simply make everything possible to come to a reasonable and defendable decision. 
[09:25]	schestowitz	And as they are not a machine, even if everything else is identical, the coin might fall on another side and it is good so.
[09:25]	schestowitz	In all OP I could witness, there was always a certain tension palpable but this is to be noticed and should not influence the decision taken. This is what I call atmosphere. May be the word is not right, but I cannot find a better one. The tension is due to the presence of the parties and the interests they represent. The fact that one is not present in a ViCo such an atmosphere is absent. This is my own perception in 
[09:25]	schestowitz	all ViCos I have participated. Even when teaching you do not come to the same involvement of all, be it teacher or pupils.
[09:25]	schestowitz	What seems more important, and nobody has commented on this point, is that the members of the deciding body should sit together and not sit in totally different locations. Such a dematerialised set up does by no means reflect the proper functioning of a division or of a BA. At the beginning of examination in The Hague, there were divisions sitting in both locations. If there was no reason to meet face-to-face the dealings 
[09:25]	schestowitz	within the divisions were extremely limited, not to say inexistent. When people met in person things were totally different. And by making ViCo mandatory, this trend will increase. Just have a look at what the girl from Ipanema has written as comment in Mr Bauschs blog dated 24.11.2020.
[09:25]	schestowitz	If Anon Y. Mouse thinks that there is nothing in Art 116 which makes the presence of the parties and of the deciding body in one of the same room, then he should look at the Travaux Preparatoires ending in Art 116 as we know it.
[09:25]	schestowitz	Even if ViCo were something (like the Internet) not foreseeable in 1973, a normal and reasonable interpretation according to the Vienna Convention on the Law of Treaties by taking into account said Travaux Preparatoires means that parties and deciding body sit all together in the same room. In a ViCo you can be listened to and seen, but will you really be heard? I have my doubts.
[09:25]	schestowitz	If parties wish OP in form of ViCo it is their right, but at least the deciding body should sit together. This is the guaranty that the parties are not merely listened to but also heard.
[09:25]	schestowitz	It is clear that we are in an emergency situation, but even then Vico are not the only technical possible way to have oral proceedings for the next years. I therefore still disagree with Patent Robot. The overall time to deal with a file might be extended if the file is not dealt with swiftly, but if this the wish of a party, who is the EPO to say we know what is good for you and everything is to be done immediately.
[09:25]	schestowitz	Nothing against OP in form of ViCo if the parties wish so, but the members of the deciding body should sit together. It does not mean to be against progress when requesting such measures. Nobody want to be an Amish in the patent world, but the checks and balances should be there.
[09:25]	schestowitz	Once again, if the philosophy of the EPC is to be changed in such a way that the EPO and the procedure before it should actually be dematerialised, this is a decision to be taken by the member states of the EPC and not the management of the EPO or of the BA.
[09:25]	schestowitz	It is too easy to take the opportunity of a real health crisis to actually dismantle the EP system. If this the hidden agenda of some people, who should eventually profit from it? We all know that for a while the tail has been wagging the dog, but time has come to stop this nonsense!
[09:25]	schestowitz	Patent robot
[09:25]	schestowitz	DECEMBER 5, 2020 AT 5:53 PM
[09:25]	schestowitz	It is clear that we are in an emergency situation, but even then Vico are not the only technical possible way to have oral proceedings for the next years. I therefore still disagree with Patent Robot. 
[09:25]	schestowitz	Ok, so if a party refuses the use of ViCo what should the BoA do? Wait until the Covid emergency is over?
[09:25]	schestowitz	Concerned observer
[09:25]	schestowitz	DECEMBER 5, 2020 AT 12:51 PM
[09:25]	schestowitz	To Anon Y. Mouse and Patent Robot: before making unsupported (ie unreasoned), sweeping statements about interpretations of Article 116 EPC that you consider to be perfectly reasonable, please do me a favour and conduct a thorough analysis of the results of the various methods (under the EPC) for interpreting that article.
[09:25]	schestowitz	You may, for example, wish to consider the context of the phrase oral proceedings (eg in that those should be before the EPO department in question). Teleological and historical considerations will be important too. You may also wish to consider the impact of prior Board of Appeal interpretations of Article 116 EPC.
[09:25]	schestowitz	Whilst interpretations based upon a not expressly forbidden standard may now be all the rage at the EPO, I would also encourage you to consider whether that standard has any legal basis under the EPC or the Vienna Convention.
[09:25]	schestowitz	Patent robot
[09:25]	schestowitz	DECEMBER 5, 2020 AT 7:55 PM
[09:25]	schestowitz	Since you certainly know the Travaux Prparatoires and the Vienna Convention better than me, could you please explain me according to which articles/pages thereof oral proceedings should be interpreted as being proceedings held in person? Thank you!
[09:25]	schestowitz	Anon Y. Mouse
[09:25]	schestowitz	DECEMBER 5, 2020 AT 8:22 PM
[09:25]	schestowitz	To the two Observers:
[09:25]	schestowitz	I am more on your side than you seem to think. Please do not resort to high-handed condescension or personal abuse.
[09:26]	schestowitz	My point is that oral proceedings by ViCo should not be imposed against the will of parties to proceedings, nor should they become the default. On that we seem to agree. However, I think there is a role for ViCo proceedings *for parties who are willing to agree to them*.
[09:26]	schestowitz	My remarks concerning Art. 116 are merely that contrary to you I do not see a strong rationale for interpreting the EPC itself in such a manner as to exclude ViCo. Whether based on the literal wording oral proceedings, or based on the Travaux Preparatoires, it seems that no definitive conclusion can be drawn on this matter. Nor do previous (pre-pandemic) rulings of the Boards excluding the possibility of ViCo 
[09:26]	schestowitz	establish a precedent meaning that ViCo must always be excluded. Were the EPC so rigid as you propose, or the Boards previous rulings so binding, then surely the conclusion would have to be that *all* ViCo hearings that have taken place throughout the pandemic are illegal. I do not believe that either of you would endorse that conclusion, but it is nevertheless the logical conclusion of your arguments.
[09:26]	schestowitz	Legal arguments around the interpretation of Article 116 EPC appear to me to be a dead end in the absence of a clear-cut answer. Is it not better to argue to the EPO and the Boards that mandatory ViCo should be resisted on pragmatic grounds such as those so persuasively articulated by the submissions detailed in this post, and by the collected commenters here?
[09:26]	schestowitz	Patent robot
[09:26]	schestowitz	DECEMBER 6, 2020 AT 9:27 AM
[09:26]	schestowitz	I agree with you, with the substantial difference that in my opinion ViCos should be imposed during the current emergency.
[09:26]	schestowitz	Concerned observer
[09:26]	schestowitz	DECEMBER 7, 2020 AT 12:07 PM
[09:26]	schestowitz	Anon Y. Mouse: if my frustration (at the lack of attention to detail that I perceived on your part) came across as condescension, then I apologise.
[09:26]	schestowitz	I would point out, however, that you do appear (at least to me) to have a continuing problem regarding lack of attention to detail. My position is not, and has never been, that Article 116 EPC excludes the possibility of conducting OPs by using VICOs. Instead, it is that Article 116 EPC confers upon a party to proceedings before the EPO an ABSOLUTE RIGHT to appear in person in order to present their case orally. In this 
[09:26]	schestowitz	regard, please see my comments above quoting from T677/08. (For more context to the background to my concerns, see my comments from 30 November on a different thread: http://patentblog.kluweriplaw.com/2020/11/27/oral-proceedings-by-videoconference-some-light-reading-at-the-end-of-a-hot-debate/)
[09:26]	schestowitz	Of course, a right held by a party can be waived by that party. I therefore see absolutely no problem with VICOs being conducted with the CONSENT of the relevant parties to the proceedings (though, in common with Attentive Observer, I have concerns about different members of the ED, OD or Board of Appeal participating in such proceedings from different locations that are remote from the official location of the department or 
[09:26]	schestowitz	Board in question).
[09:26]	schestowitz	On the other hand, I have a BIG problem with the EPO acting ex officio to effectively waive rights held by parties to oral proceedings. There is simply no legal basis for this.
[09:26]	schestowitz	From your comments, it seems that our respective positions on this issue may not be that far apart. The most significant difference between us seems to be that, because of the pandemic, you are less concerned about the EPO imposing the use of VICOs against the wishes of one or more parties to oral proceedings. Whether emergency measures, such as the imposition of VICOs, can be justified DURING the pandemic is a 
[09:26]	schestowitz	potentially arguable point (though I note that it is a bit rich for the EPO to now worry so much about the duration of appeal proceedings when, for so many years, the (previous) EPO President deliberately prevented the Boards from reaching a full complement of members). However, I would point out that the proposed amendment to Article 15a RPBA does not include any explicit or implicit limit on its period of validity. This 
[09:26]		-TechrightsSocial/#boycottnovell-social-patentblog.kluweriplaw.com | Oral Proceedings by Videoconference - some light reading at the end of a hot debate - Kluwer Patent Blog
[09:26]	schestowitz	means that the change is intended to be PERMANENT. If you believe otherwise, then you have simply not been paying enough attention to the EPOs actions in recent years.
[09:26]	schestowitz	Patent Robot: he who asserts bears the burden of proof. Frankly, I cannot believe that you are cheeky enough to ask me to do your homework for you. What a wind-up merchant!
[09:26]	schestowitz	Patent robot
[09:26]	schestowitz	DECEMBER 7, 2020 AT 2:19 PM
[09:26]	schestowitz	Here is my homework: Art. 116 EPC does not impose oral proceedings to be held in person so that compulsory videoconferences do not violate Art. 116 EPC. There is also no G decision on this.
[09:26]	schestowitz	Also the ECHR imposes now videconferences: do you think that they are violating human rights?
[09:26]	schestowitz	Curious
[09:26]	schestowitz	DECEMBER 6, 2020 AT 10:39 AM
[09:26]	schestowitz	Travaux Prparatoires, IV/6514/61-D, page 83:
[09:26]	schestowitz	Die Gruppe erklrt sich mit einer mndlichen Verhandlung grundstzlich einverstanden. Sie wird vom Prsidenten aufgefordert, zu der Frage Stellung zu nehmen, ob diese Verhandlung obligatorisch oder fakultativ sein soll. []
[09:26]	schestowitz	Die Gruppe genehmigt einstimmig die fakultative Lsung. Die obligatorische Lsung scheitert nmlich an den Schwierigkeiten, die such aus den grossen Entfernungen im Geltungsbereich des europischen Patents, aus den hohen Kosten und aus den Sprachproblemen ergeben
[09:26]	schestowitz	Could this reference to the large distances / costs involved with oral proceedings been seen as a clear indicator that during the Travaux Prparatoires oral proceedings have always been considered to be face-to-face meetings?
[09:26]	schestowitz	Attentive Observer
[09:26]	schestowitz	DECEMBER 6, 2020 AT 12:19 PM
[09:26]	schestowitz	@ Patent Robot
[09:26]	schestowitz	Try to use common sense when reflecting on the meaning of oral proceedings. Stating in an apodictic way that nowhere it is said that it should be in person is beside the point and not helpful.
[09:26]	schestowitz	It is not if case is held back for a year or so that the whole system will collapse. And if a party is once proprietor it can become later opponent. I therefore think that a fair balance of the interests of the parties can be given.
[09:26]	schestowitz	@ Anon Y. Mouse
[09:26]	schestowitz	There is from my side no high-handed condescension or personal abuse. If you think this I am sorry.
[09:26]	schestowitz	If parties agree to have OP as ViCo, who am I to decide differently? However even if form of a ViCo, the deciding body ought to sit together and decide collectively on the spot. That in case of single judge, a ViCo is possible is not at stake.
[09:26]	schestowitz	When the body is necessarily composed of three members, even five in some cases in appeal, having all the members disseminated in different locations is not what one would understand as a collective deciding body. The exchanges cannot be the same as if all members sit together. One of the comments one hears regularly is that the dealings in ViCos are mainly with the examiner in charge or the rapporteur. This is inevitable, 
[09:26]	schestowitz	but is the negation of the notion of collective discussion.
[09:26]	schestowitz	What I insist upon is that we leave in a legal environment and if the procedure before the EPC is to be changed in the drastic way presently pushed by the management of the EPO and of the BA, it needs a solid legal basis. This basis is presently absent for the new procedures the EPO and the BA want to push upon the users of the system.
[09:27]	schestowitz	If all parties agree to have OP in form of ViCo, there is nothing against such a move provided the legal basis to do so is there. Art 10 and Art 116 do however not give the powers to the head of the EPO to take such far reaching decisions. Those decisions change the whole philosophy of the EPC when looked at the light of the Vienna Convention of the Law of Treaties. The same applies to the management of the BA. Nothing allows
[09:27]	schestowitz	the BoAC to decide such changes on its own.
[09:27]	schestowitz	The problem induced by those changes is that it eventually ends up with a complete dematerialisation of the EPO. Is this was the users want? Members of first instance divisions and of boards sit in different locations all linked electronically. Nothing against using modern means of communication, but the legal basis has to be there.
[09:27]	schestowitz	Nobody wants to be called the Amish of the patent world. But all changes have to be correctly reflected and all the pro and cons openly discussed. Here it is a decision which cannot even be discussed from the side of the head of the EPO. At least the BA asked for comments, important is however what they will do with the comments. In full knowledge of what happen with the RPBA20 it have my idea.
[09:27]	schestowitz	It would be possible to introduce new rules of procedures relating to OP in form of ViCo by adding few articles in the rules of proceedings. However we all know that for quite a while the tail has been wagging the dog and the AC is gullible to anything served to it by the head of the EPO. This way should thus be avoided.
[09:27]	schestowitz	In order to bring in such a drastic change in the proceedings leading to a complete dematerialisation of the EPO on the way would be to call a diplomatic conference. Before a diplomatic conference it is high time to start with a conference of ministers of the Contracting States responsible for patent matters as provided in Art 4a. EPC 2000 is in force since 2007 and we should be on the verge of the third conference of this 
[09:27]	schestowitz	kind. How come that in spite of the wording shall in Art 4a no such a conference has ever been called? The tail is wagging the dog is the only reply possible.
[09:27]	schestowitz	A diplomatic conference could also deal with what was called the second-basket when closing the Diplomatic Conference. I think here of Art 52(2)-(3) and Art 53, b). This would avoid the EBA to have to come up with a dynamic interpretation of its own case law in order to please the head of the EPO and the AC.
[09:27]	schestowitz	At the EPO the legitimate expectations of parties are well protected. All OP having taken the form of ViCo in the absence of corresponding procedural rules cannot thus not be declared void and null. This would not be fair to the parties, but it does not dispense the EPO and the BA to give those procedures a sound legal basis. I do not think this is asking too much.
[09:27]	schestowitz	In all contracting members of the EPC when new procedural rules are introduced, they are under the control of the parliament and of the judiciary. Taking the pretext of a real crisis in order to force such new procedures upon the users of the EPO is also not a way to take care of the legitimate expectations of the users.
[09:27]	schestowitz	Beside CIPA and Patent Robot, I do know very few people who are fully in favour of OP taking mandatorily the form of ViCos even after the pandemic.
[09:27]	schestowitz	The EPC has been devised for its users, not for the management of the EPO and of the BA.
[09:27]	schestowitz	Patent robot
[09:27]	schestowitz	DECEMBER 6, 2020 AT 7:27 PM
[09:27]	schestowitz	I never wrote that ViCOs should be compulsory even after the pandemic.
[09:27]	schestowitz	So you propose to stop all OPs until the emergency is over, when a party does not want ViCo?
[09:27]	schestowitz	MaxDrei
[09:27]	schestowitz	DECEMBER 6, 2020 AT 2:37 PM
[09:27]	schestowitz	Being prissy, and English, Im still obsessed with the over-riding objective to deal with cases justly. Suddenly it occurs to me that ViCo might help towards that objective.
[09:27]	schestowitz	I mean, consider how disputes on the football field are decided, these days. Exhaustive video evidence. A special room, full of screens, where a Fourth Official can replay the disputed facts until sure what Decision to hand down. Now imagine a TBA at the EPO, debating within itself what decision to hand down. Will the video evidence of the proceedings, available to recall and replay at will, help the members of the TBA to 
[09:27]	schestowitz	deal with the case justly. I rather think it might. Any disagreement within the membership can then be resolved by the video evidence rather than by which TBA member (Chair or Rapporteur) has the most forceful personality. The Legal Member can be a more forceful Tie-breaker vote, once they can rely upon the evidence of their own eyes and ears, personally watching the video replay of the key moment, as often as necessary
[09:27]	schestowitz	We are patent experts. We of all people should be open to new technology, so long as we remain true to the ideal of justice, not only being done but being seen to be done. Let Europe set an example to the rest of the world. We owe it to ourselves, our jurisdictions and indeed, the rest of the World, to set a good example, to provide in Europe just as good a future-proof procedural beacon to follow as the beacon of the EPC and
[09:27]	schestowitz	its case law is, as a beacon, these past 50 years,for the substantive law of patentability.
[09:27]	schestowitz	Advocatus diaboli
[09:27]	schestowitz	DECEMBER 6, 2020 AT 3:39 PM
[09:27]	schestowitz	To those who propose that the meaning of Oral Proceedings, interpreted respectively in light of the Travaux Preparatoires, can only mean oral proceedings with all persons physically present in the same room 
[09:27]	schestowitz	from where in the EPC and/or the Travaux Preparatoires does it then emerge that the EPO may deviate from this apparently strict interpretation in times of emergency?
[09:27]	schestowitz	You argue essentially that the absence of any discussion of ViCo in the EPC or the Travaux Preparatoires means that the possibility was not foreseen, and must be excluded. But neither do the EPC or the Travaux contain any discussion of an emergency deviation from this practice, as far as I know. So the same reasoning means that also the use of ViCo in an emergency would not be allowed.
[09:27]	schestowitz	Either your interpretation is correct, and ViCo oral proceedings shall not be permitted, even in an emergency. Or your interpretation is wrong, and ViCo proceedings shall not be implicitly or explicitly ruled out by the EPC, whether in emergency times or otherwise.
[09:27]	schestowitz	Please explain how you instead come to the half-way position that emergency ViCo is permitted but non-emergency ViCo is forbidden, indeed alters the EPC.
[09:27]	schestowitz	Attentive Observer
[09:27]	schestowitz	DECEMBER 6, 2020 AT 10:42 PM
[09:27]	schestowitz	I do not exclude oral proceedings in form of a ViCo. Nobody wants tobe the Amish of the patent world, and be opposed as a matter of principle to take into account new ways of communication.
[09:27]	schestowitz	A number of conditions have however to be fulfilled:
[09:27]	schestowitz	 they need a legal basis which is presently not there; it cannot be left to the head of the EPO and of the BA to decide such a drastic change in procedure or not;
[09:27]	schestowitz	 it should be left to the parties whether they want this form of oral proceeding; it cannot be left to the discretionary power of the deciding body;
[09:27]	schestowitz	 it should not lead to a dematerialisation of the EPO, which inevitably will occur if this form of oral proceedings is mandatory and/or left to the discretion of the deciding body;
[09:27]	schestowitz	 the deciding body is to sit together in the same room in order for a truly collegial decision to come out.
[09:27]	schestowitz	Taking pretext of a crisis situation to fundamentally change the procedure before the EPO goes way beyond the powers delegated by the contracting states to the management of the EPO and of the boards.
[09:27]	schestowitz	This is not too difficult to understand, or does it go beyond the realm of understanding of the readers of this blog? If yes we can only despair.
[09:28]	schestowitz	Btw, no need for ViCo to keep a trace of what has been said. The whole proceedings can be recorded in extenso. This is already the case when hearing a witness. It would also clarify what has actually happened during the ViCo. A copy of the tape could be given to the parties and the original kept by the deciding body. It would also save drafting summarised minutes which can be the cause of problems.
[09:28]	schestowitz	Dear Max Drei, here you have the beacon you are looking for. And this can be implemented at the next meeting of the AC.
[09:28]	schestowitz	Alessandro Cossu
[09:28]	schestowitz	DECEMBER 7, 2020 AT 10:27 AM
[09:28]	schestowitz	As regards the Travaux Prparatoires, document IV/6514/61 summarises on p. 83 the results of the third session of the Working Group Patents, held in Brussels from 25 September to 6 October 1961, during which the Working Group discussed Article 96a of the First Preliminary Draft of the Convention, concerning oral proceedings before the Boards of Appeal of the future European Patent Office.
[09:28]	schestowitz	In response to the question, asked by the President of the Working Group, whether oral proceedings before the Boards of Appeal should be obligatory or optional and whether it could be left to the Boards to decide whether to appoint a hearing, the members of the group took the following position (reference is made to the German version IV/6514/61/D): Die Gruppe genehmigt einstimmig die facultative Lsung. Die obligatorische
[09:28]	schestowitz	Lsung scheitert nmlich an den Schwierigkeiten, die sich aus den grossen Entfernungen im Geltungsbereich des europischen Patents, aus den hohen Kosten und aus den Sprachproblemen ergeben (my translation: The group unanimously approves the optional solution. The compulsory solution fails because of the difficulties arising from the large distances in the territorial ambit of validity of the European patent, the high 
[09:28]	schestowitz	costs and the linguistic problems).
[09:28]	schestowitz	There was thus unanimous agreement, as early as 1961, that oral proceedings before the Boards of Appeal were meant to be proceedings in person, as may be understood from the rejection of the obligatory solution, which would have forced parties and representatives to travel, with attendant high costs.
[09:28]	schestowitz	However, in the final draft of the Convention approved at the Munich Diplomatic Conference, it was stipulated that oral proceedings must take place (cf. Article 116(1) EPC) if a party requires them: the obligatory solution was thus chosen, which clearly means that the interest of a party to present its case in person was considered to prevail and to have more weigh over the disadvantage of having to travel large distances 
[09:28]	schestowitz	with the attendant costs.
[09:28]	schestowitz	As concerns the argument that Article 116 EPC does not specify where oral proceedings should take place, I note the following.
[09:28]	schestowitz	In the decision T 1012/38, the deciding Board stated that the various expressions used in paragraphs 1 to 4 of Article 116 EPC, namely before the same department, before the Receiving Section, before the Receiving Section, the Examining Divisions and the Legal Division and the department before which the proceedings are taking place can be read as a reference to the function of the department or 
[09:28]	schestowitz	Division as a deciding body. If the relevant department has to exercise its function in oral proceedings, it follows that the department has to be located at a specific place in order to conduct those oral proceedings. For this purpose, the Divisions have to allocate hearing rooms and they have to be present themselves at the scheduled times. Thus, the word before in the above expressions also implies a location 
[09:28]	schestowitz	where the proceedings have to be carried out, namely at least at the place where the relevant department is located []. Please note the reference to a physical space hearing rooms.
[09:28]	schestowitz	On the basis of this analysis of Article 116 EPC, the deciding Board in the decision T 1012/03 concluded, under point 38 of the grounds, that the term oral proceedings before the respective department in Article 116 EPC not only concerns the function of the deciding Division but also the location where oral proceedings are to take place.
[09:28]	schestowitz	In discussing its interpretation of the word before as designating the place where the relevant department is located, the Board stated at the end of point 37: This interpretation was never questioned when the Receiving Section was set up exclusively in The Hague. It was self-evident that the parties or their representatives would have to travel to The Hague if the Receiving Section summoned them to oral proceedings 
[09:28]	schestowitz	pursuant to Article 116(2) EPC.
[09:28]	schestowitz	To maintain, as apparently held by the drafters of the explanatory remarks to new article 15a and in some of the comments here, that since Article 116 does not explicitly define the place where a hearing is to take place, oral proceedings could also be held by video conference, is pretty much the same as stating that, since Article 56 EPC does not specify who the skilled person is, this concept could mean anything; or that, 
[09:28]	schestowitz	since Article 122 does not say what the notion of due care means, one could interpret this concept as it pleases him.
[09:28]	schestowitz	This is nonsense, from a legal point of view. Legal provisions need to be interpreted and that is precisely what the Boards do and did in T 1012/03.
[09:28]	schestowitz	Advocatus diaboli
[09:28]	schestowitz	DECEMBER 7, 2020 AT 1:19 PM
[09:28]	schestowitz	To maintain, as apparently held by the drafters of the explanatory remarks to new article 15a and in some of the comments here, that since Article 116 does not explicitly define the place where a hearing is to take place, oral proceedings could also be held by video conference, is pretty much the same as stating that, since Article 56 EPC does not specify who the skilled person is, this concept could mean anything; or that
[09:28]	schestowitz	 since Article 122 does not say what the notion of due care means, one could interpret this concept as it pleases him. This is nonsense, from a legal point of view. Legal provisions need to be interpreted and that is precisely what the Boards do and did in T 1012/03.
[09:28]	schestowitz	Do you mean to imply then that the previous interpretation of the Boards is set in stone? This does not seem in keeping with the general approach under the EPC under which (as you surely know) there is no strict binding precedent as such. Indeed Article 56 (to take your example) does not specify the skilled person. Nor does it specify what is meant by not obvious, but at least on this point, the Boards have been allowed
[09:28]	schestowitz	to develop their case law on what is not obvious over time, even at the expense of changing their interpretation of the EPC in response to new factual situations arising in examination of applications or oppositions.
[09:28]	schestowitz	Does the new factual situation arising from the pandemic not also, in your view, create the space for a new interpretation of Article 116?
[09:28]	schestowitz	Perhaps a referral to the Enlarged Board is needed to settle this, though the pandemic situation may already be history by the time it is decided.
[09:28]	schestowitz	Advocatus diaboli
[09:28]	schestowitz	DECEMBER 7, 2020 AT 1:30 PM
[09:28]	schestowitz	Applying your reasoning, ViCo oral proceedings even during the pandemic are contrary to the interpretation which you propose based on document IV/6514/61 and T 1012/03. Does not that then mean such (emergency) ViCo oral proceedings are also forbidden?
[09:28]	schestowitz	There still remains a fundamental gap in the logic of the position of those who oppose ViCo on purely legal reasoning. Nobody has yet convincingly filled this gap. Either your preferred interpretation is fixed, and ViCo proceedings are not permissible whatsoever, even in pandemic times. Or it is not fixed, and can therefore evolve, even to the extent of permitting ViCo proceedings. In that case the debate then is around the 
[09:28]	schestowitz	boundaries of when ViCo should and should not be allowed. This is a practical question, not a question of interpretation of the EPC itself. From my side, it seems we are indeed in this latter situation.
[09:28]	schestowitz	Alessandro Cossu
[09:28]	schestowitz	DECEMBER 7, 2020 AT 10:30 AM
[09:28]	schestowitz	The decision I quoted in my previous comment is T 1012/03 (there is obviously no T 1012/38)
[09:28]	schestowitz	MaxDrei
[09:28]	schestowitz	DECEMBER 7, 2020 AT 1:36 PM
[09:28]	schestowitz	Debating what oral means reminds me of learned debates in England and in the USA. When Justices of the Supreme Court insist on giving the words of the 18th century Constitution of the USA a literal meaning, it makes me feel sick. I prefer the judges of the UK Supreme Court, who adopt a more pragmatic, sensible and useful approach, asking what the writer of the statutory provision was using those particular words to mean
[09:29]	schestowitz	For example, when faced with a word in a 19th century Statute, say the Road Traffic Act, and its references to a carriage, should we construe it as something horse-drawn (as was envisaged at the time of writing) or can we interpret it as a reference to a passenger-carrying wheeled vehicle, and not of necessity one drawn by horses? In other words, is an automobile a carriage?
[09:29]	schestowitz	Likewise here. I think I know the difference between written and oral proceedings. Sorry folks; I think it has nothing to do with the place where each speaker happens to be standing.
[09:29]	schestowitz	My concern lies more with how the EPO reaches its decision. Imagine a jury trial, with each of the 12 members of the jury 500 miles away from every other jury member. No thank you. They MUST be all in the same room.
[09:29]	schestowitz	The OD and the TBA are just like a jury because they also serve as the mechanism to determine what are the facts. All members MUST be physically in the same room. Justice must not only be done but seen to be done.
[09:29]	schestowitz	Attentive Observer
[09:29]	schestowitz	DECEMBER 7, 2020 AT 5:51 PM
[09:29]	schestowitz	Thanks to A. Cossu to once more make things abundantly clear.
[09:29]	schestowitz	The Travaux Prparatoires are very clear as far Art 116 and Art 18,19 and 21, 22 are concerned. The BA regularly resort to Art 31 and 32 of the VCLT. It was suspicious that for Art 15a RPBA20 no reference to the VCLT was made.
[09:29]	schestowitz	The reasons for this are obvious: Art 31 and 32 VCLT were not fit for the purpose and would even lead to the conclusion that the justification for Art 15a RPBA20 goes against these articles and are against the spirit and the scope of the EPC.
[09:29]	schestowitz	The whole justification for Art 15a RPBA20 is to be taken, not just with a pinch of salt, but a whole vat of it.
[09:29]	schestowitz	What is valid for Art 15aRPBA20 and the BA applies mutatis mutandis to OP in form of ViCo before first instance divisions. There are as little justified than Art 15a RPBA20.
[09:29]	schestowitz	"
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