European Patent Office (EPO) COVID-19 provisions – as at 5 May 2020

The EPO has now issued a further guidance notice regarding its deadlines in light of the ongoing coronavirus situation, which replaces the previous notice dated 16 April 2020 and which will be published in the EPO’s May Official Journal. The EPO has also issued further information regarding oral proceedings before examination and opposition divisions. This article summarises all of the EPO’s COVID-19 related notices, information and decisions to date.

Remedies in case of non-observance of time limits

Extension of time limits expiring on or after 15 March 2020

According to the latest EPO guidance notice, all “time limits” expiring on or after 15 March 2020 are now further extended until 2 June 2020.

• A “time limit” involves a period of a fixed length for accomplishing a procedural act.
• The extension of time limits under these provisions applies to all periods provided for under the EPC and the PCT.
• The extension of time limits applies to the 9 month opposition period, thus providing the ongoing opportunity to oppose patents where the 9 month period expired on or after 15 March 2020.
• The extension of time limits also applies to periods for paying fees, including renewal fees.
• The EPO has clarified that this safeguard does not apply to procedural acts which must be performed by a specific date such as the final date for making written submissions in preparation for oral proceedings.
• The safeguard also does not apply to procedural acts which must be performed under specific conditions, for example filing a divisional application, which requires that the parent application must be pending when the divisional application is filed.
• If the disruption continues after 2 June 2020, the EPO may publish another notice informing users about further extensions and remedies in respect of time limits.

Legal remedies for missed time limits expiring before 15 March 2020

For time limits expiring before 15 March 2020, the EPO has facilitated the use of legal remedies for users located in areas directly affected by disruptions due to the COVID-19 outbreak. The extensions and remedies apply to parties and representatives in proceedings under the EPC and the PCT.

Oral Proceedings before Examining Divisions

The EPO has changed their practice by a Decision of the EPO President so that, as a rule, from 2 April 2020 oral proceedings before examining divisions will be held by videoconference. Equally, interviews in examination will be held by videoconference as a matter of course.

• This new default position applies unless the proceedings require the direct taking of evidence, or if there are other “serious reasons” for not doing so.
• The EPO has stated that “sweeping objections” against the reliability of videoconferencing technology or the non-availability of videoconferencing equipment will, as a rule, not qualify as serious reasons.
• To provide reassurance, the Decision indicates that if technical problems arise that prevent the oral proceedings from taking place and that cannot be overcome then the examining division will issue a new summons.
• Oral proceedings already scheduled to take place on EPO premises in examination proceedings can be converted into oral proceedings by videoconference with the applicant's consent.
• These provisions do not have a time limit and are not conditional and so will remain in place after the COVID-19 disruptions have ended.

The EPO has postponed all oral proceedings scheduled to take place on EPO premises in examination proceedings until 2 June 2020 unless they have been converted into oral proceedings by videoconference with the applicant's consent.

Oral Proceedings before Opposition Divisions

A pilot scheme has been started for holding opposition oral proceedings by videoconference at the discretion of the opposition division and with the agreement of all parties. This pilot will run from 4 May 2020 until 30 April 2021.

• The EPO has advised that opposition oral proceedings remain public and any member of the public can attend by giving prior notice that they wish to do so.
• Opposition oral proceedings will not be held by videoconference if the proceedings require the direct taking of evidence, or if there are other “serious reasons” for not doing so.

The EPO has postponed all oral proceedings scheduled to take place on EPO premises in opposition proceedings until 2 June 2020.

Boards of Appeal

The EPO has now issued four communications from the Boards of Appeal. According to the latest notice dated 17 April 2020, oral proceedings will not be held in the premises of the Boards of Appeal until 15 May 2020.

The Boards of Appeal will continue to issue written decisions, communications and summonses to oral proceedings.

Information resources

The EPO guidance relating to coronavirus is here.

The EPO notices to date are:

Notice dated 15 March 2020 (extended time limits to 17 April 2020)

Notice dated 30 March 2020 (concerning the extension of periods for the payment of fees)

Decision of the EPO President dated 1 April 2020 (concerning oral proceedings by videoconference before examining divisions)

Notice dated 1 April 2020 (concerning oral proceedings and interviews to be held by videoconference)

Information dated 7 April 2020 (on oral proceedings before examination and opposition divisions until 30 April 2020 – now replaced by Information dated 4 May 2020, see below)

Decision dated 14 April 2020 (pilot project for holding opposition oral proceedings by videoconference)

Notice dated 14 April 2020 (further information concerning the pilot project for holding opposition oral proceedings by videoconference)

Notice dated 16 April 2020 (extended time limits to 4 May 2020)

Notice dated 1 May 2020 (extends time limits to 2 June 2020)

Information dated 4 May 2020 (on oral proceedings before examination and opposition divisions until 2 June 2020)

The Board of Appeal communications to date are:

Notice dated 15 March 2020 (No oral proceedings in the Boards of Appeal 16-27 March 2020)

Notice dated 20 March 2020 (No oral proceedings in the Boards of Appeal until 17 April 2020)

Notice dated 1 April 2020 (No oral proceedings in the Boards of Appeal until 30 April 2020)

Notice dated 17 April 2020 (No oral proceedings in the Boards of Appeal until 15 May 2020)

We will continue to provide updates as and when the EPO issues further guidance. The CMS team is currently working to meet all deadlines as originally set by the EPO, but we appreciate that clients may wish to take advantage of an extended deadline as their businesses and travel are disrupted. Please contact your usual CMS patent attorney if you would like clarification of any specific deadline or if you have concerns about meeting deadlines connected with your patents and patent applications.