Update on EPO Measures Due to the COVID-19 Pandemic

By Francesca Giovannini

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The March notice of the European Patent Office (EPO) announced measures to safeguard applicants’ rights and opposition and appeal parties’ rights due to the COVID-19 pandemic, establishing that all “time limits” before the EPO expiring on or after 15 March 2020 were extended until 17 April 2020 (see March issue of our Newsletter).  The EPO has subsequently announced that all “time limits” expiring on or after 15 March 2020 are further extended until 4 May 2020. The new EPO notice, which has been published in the EPO’s April Official Journal, also recognizes that due to pandemic spread, there is a global risk of acquiring COVID-19, and no longer makes reference to specific high-risk areas.

Importantly, the EPO has also announced that the extension of time limits expiring on or after 15 March 2020 also applies to periods for paying fees, including renewal fees. These fees did not appear to be included in the extension of time limits announced in the March notice. However, we draw again our readers’ attention that not all deadlines fall within the definition of “time limits” extended by the EPO until 4 May 2020. For example, the deadline for filing written submissions and/or amendments before oral proceedings as indicated in the Summons to attend oral proceedings and the deadline for filing a divisional application are deadlines which do not fall within the extended “time limits.”

The EPO has also announced, with the decision of the President dated 1 April 2020, that oral proceedings before Examining Divisions are to be held by video conference, unless the proceedings require the direct taking of evidence, or there are other serious reasons for not doing so, for example where an impediment prevents an applicant or European patent attorney from participating in oral proceedings held by video conference. Applicants may also participate remotely from any location. However, should an applicant wish to participate, the EPO requires that the applicant’s intention to connect to oral proceedings held by video conference be indicated as early as possible. The possibility of participating from different locations is open also to the members of Examining Divisions. The President’s decision applies to: (i) oral proceedings before Examining Divisions the summons to which is notified on or after 2 April 2020, (ii) oral proceedings scheduled for a date after 17 April 2020 the summons to which indicated that they are to be held by video conference and was already notified prior to 2 April 2020, and (iii) oral proceedings for which a summons to oral proceedings on the premises of the EPO was notified prior to 2 April 2020 and which the applicant has agreed to have held by video conference on or after 2 April 2020.

In contrast, the decision does not apply to oral proceedings before Opposition Divisions or the Boards of Appeal. In this regard, the EPO has decided to postpone until further notice all oral proceedings in examination and opposition proceedings scheduled until 30 April 2020 (previously until 17 April 2020) unless they have already been confirmed to take place by means of videoconferencing or in examination are converted into oral proceedings by video conference with the applicant’s consent.

If the disruption should continue after 4 May April 2020, any further extensions and remedies in respect of time limits will be communicated in further EPO notices.