Tuesday, 3 March 2015

T 1938/09 Objection for suspicion of partiality



Background: 

In an interlocutory decision of 25 April 2014 in the Petition for Review case R19/12, the Chairman of the Enlarged Board of Appeal was replaced having been accused of potential partiality in view of his role as Vice President of the EPO and as such subject to the supervisory authority of the President of the EPO under Article 10(2)(f) EPC (R19/12 r.14.1 in conjunction with r.16) [the EPO having decided on the case under appeal].In this new case, an attempt is made to have the chairman of the Board of Appeal replaced on the ground that any member of the Presidium of the boards of appeal could act as a substitute for the Vice President 3 (VP3 - Chairman of the Enlarged Board of Appeal). In view of interlocutory decision R 19/12, a party could also suspect any chairman of a board of appeal of being partial in a pending appeal case in which he or she was involved, if at any time during the pendency of the appeal proceedings he or she had been appointed as a substitute for VP3.The appellant raised several issues and proposed several questions to be referred to the Enlarged Board. Here we will only show the reasoning of the Board.

Reasons for the Decision

1. Where in an admissible appeal an objection under Article 24(3) EPC in respect of a board member is made by one of the parties, the board in its original composition must first decide on the admissibility of the objection (interlocutory decision R 12/09 of 3 December 2009, Reasons for the decision No. 2). An objection is inadmissible if, for example, the party has taken a procedural step while being aware of a reason for objection, or bases the objection on the nationality of the board member (Article 24(3), second and third sentences, EPC). Furthermore, the objection must be sufficiently substantiated in order to be admissible (R 12/09, Reasons for the decision No. 2). 

2. The board in its original composition considered the objection of suspected partiality with respect to the Chairman to be admissible. Therefore, the Chairman was replaced in accordance with Article 24(4) EPC for the decision to be taken on the objection. 

3. The EPC does not prescribe how the board in its alternate composition has to conduct proceedings under Article 24(4) EPC, but Article 3(2) RPBA states that the member concerned shall be invited to present his comments as to whether there is a reason for exclusion. This provision requires that the member objected to must be given an opportunity to present his comments and thus safeguards the member's right to be heard with respect to the objection (Münchner Gemeinschaftskommentar, Art. 24, Rdn. 46; see also Benkard, EPÜ, 2. Auflage, Art 24 Rdn. 26, Singer/Stauder, EPÜ 6. Auflage, Art. 24 Rdn. 16). 



3.1 The Chairman objected to was given the opportunity to present his comments. The Chairman replied in writing that he did not "wish to make any comments".

 3.2 The appellant argued that Article 3(2) RPBA involved an obligation of the member objected to to provide a full response to the objection raised. The board cannot deduce such a general obligation from Article 3(2) RPBA. The board acknowledges that there may be cases where a board would not be in a position to decide on the objection without having received the necessary information from the member objected to. There may however also be cases where the board is indeed in a position to take a decision without having received a full response to the invitation, as in the present case, where the objection is based on the fact that the Chairman is a member of the Presidium and could therefore have been asked to deputise for VP3 (Rule 12(5), first and second sentences, EPC). The Chairman has not provided details as requested by the appellant on whether he has deputised for VP3 during the pendency of the appeal. The provision of such details would only have been necessary if the board in its present composition considered that these details were relevant for the decision to be taken.

3.3 Furthermore, the appellant objected that during the oral proceedings it was not given sufficient time to react to the response of the member objected to, as a complex legal situation had arisen from the lack of a substantive response. The board gave the parties a 30-minute break to prepare a reaction. The board is of the view that the parties should have been prepared at the oral proceedings to receive a response under Article 3(2) RPBA that was not to their satisfaction, or that the member objected to would not make use of his right to be heard. Moreover, with the submission of 19 September 2014, the appellant filed a copy of a letter of 17 September 2014 addressed to VP3 stating that so far no statement had been made by the member objected to, citing an English Court of Appeal case, and requesting VP3 to provide information with respect to the grounds for objection. The board concludes from this submission that the appellant in fact had, prior to the oral proceedings, given consideration to the possibility that no detailed answer would be given by the member objected to. 

3.4 For these reasons "Objection 1", the request to return to written proceedings, and "Objection 3", all filed during the oral proceedings, were rejected by the board. "Objection 2" was rejected as well because it was a conditional objection and not relevant at the stage of proceedings at which it was filed.4. The objection under Article 24(3) EPC was filed on the ground that any member of the Presidium of the boards of appeal could act as a substitute for VP3. Since interlocutory decision R 19/12 found that a party could on an objective basis have doubts with respect to the impartiality of the Chairman of the EBA in his dual role as Chairman of the EBA and as VP3, a party could also suspect any chairman of a board of appeal of being partial in a pending appeal case in which he or she was involved, if at any time during the pendency of the appeal proceedings he or she had been appointed as a substitute for VP3. The objection in the present case was only upheld in the event that the Chairman had indeed acted as a deputy for VP3 during the course of the present appeal proceedings, and he was requested to make an official statement as to whether or not he was appointed as a substitute for VP3 at any stage during the appeal proceedings. 

4.1 The conclusion drawn in interlocutory decision R 19/12 is based on the circumstance that the Chairman of the EBA is not only Chairman of the EBA, but is also a Vice-President and as such subject to the supervisory authority of the President of the EPO under Article 10(2)(f) EPC (Reasons for the decision, No. 14.1 in conjunction with No. 16). Moreover every Vice-President has the duty to assist the President (Reasons for the decision, No. 14.1 in combination with No. 16) which duty is expressed in the form of a specific provision of the EPC (Article 10(3) EPC) applicable to the Vice-Presidents as such. 

This situation could lead to a conflict of interests, as the Chairman of the EBA is as VP3 bound by Article 10 EPC on the one hand, and plays an important role in the development of case law on the other hand, in particular in petition for review cases, where boundaries are set as to the extent to which boards of appeal may streamline their cases. These boundaries also have an effect on the way examining and opposition divisions may act in their cases (R 19/12, Reasons for the decision, Nos. 17.1 to 17.4, in particular No. 17.3, second paragraph on page 23). 

4.2 The appellant's objection is to be understood as meaning that when a chairman of a board of appeal acts as a deputy for VP3, he or she - as a result of this deputising - would also be subject to the supervisory authority of the President of the EPO and would have the duty to assist him in the sense of interlocutory decision R 19/12.

4.3 The board cannot agree with this point of view. 

4.3.1 The duties of board of appeal members (including chairmen) are laid down in Article 21(1) EPC. When exercising these duties, they are only bound by Article 23(3) EPC and are not subject to the supervisory authority of the President laid down in Article 10(2)(f) EPC (R 19/12, Reasons, No. 16). A chairman is furthermore not a member of the administrative hierarchy of the EPO as has been held to be VP3 (R 19/12, Reasons, No. 14.1), and the duty to assist the President mentioned in Article 10(3) EPC and specifically applicable to Vice-Presidents cannot be imposed on a chairman or acquired by way of delegation if he is deputising for VP3. 

4.3.2 Consequently, if board of appeal members under a former VP3 had been present in a managerial committee as a deputy of VP3, as was suggested in the letter of 6 May 2014, filed as an annex to the appellant's submission of 6 May 2014, they would not by their mere presence have become subject to the supervisory authority of the President, nor would the duty to assist the President under Article 10(3) EPC have been imposed on them.

4.4 Any comparison between a board of appeal member or a chairman of a board of appeal and the position of VP3 as adjudged in interlocutory decision R 19/12 must therefore fail.

5. As a further aspect, the findings in R 19/12 are based on the role that the Vice-President as the regular Chairman of the EBA plays in petition for review cases, which have an effect on the latitude given to the boards of appeal in general (see point 4.1 above in this decision, and Reasons for the decision in R 19/12, Nos. 17.2 to 17.5). 

However, the chairman of a technical board of appeal, being active in the Enlarged Board only occasionally, is not in such a position of influence. 

Nor is the board convinced by the appellant's arguments as to the technical field allocated to the board of the Chairman objected to (see point XVI. above, fourth paragraph). As stated under point 4 of this decision, the duty of VP3 to assist the President under Article 10(3) EPC cannot be imposed on a chairman of a board of appeal. Therefore, it cannot be assumed on an objective basis that, if he is deputising for VP3, a chairman might be subject to pressure to take measures that would lead to cases being handled differently in his board in comparison with other boards. Additionally, there are legal mechanisms to ensure a uniform application of the law by all boards (Article 112 EPC and Article 21 RPBA) and for review in the case of an alleged procedural violation by a board (Article 112a EPC).

6. Under these circumstances, for the question of impartiality of the Chairman of this board in its original composition it is irrelevant whether he has during the pendency of the appeal proceedings at any time deputised for VP3 during the absence of the latter. Consequently, the board is in a position to take a decision without an official statement from the Chairman on whether and, if so, on what dates he has deputised for VP3. 

The further objection under Article 24(3) EPC to the Chairman based on the lack of detailed information from him, as referred to in the previous paragraph, must therefore also be rejected, since the board cannot deduce any partiality on the part of the Chairman based on his decision not to provide such internal data, which, moreover, would involve giving personal data about absences of VP3.7. Referral of questions to the EBA[…]

Order

For these reasons it is decided that:1. The objection of suspected partiality with respect to the original Chairman of the board is refused.2. The requests for referral of Questions 1, 2 and 3 to the Enlarged Board of Appeal are rejected.

This decision has European Case Law Identifier: ECLI:EP:BA:2014:T193809.20141002
The whole decision can be found here
Photo "Fisher Ames" by Cliff obtained via Flickr under CC BY 2.0 license (no changes made).

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