Wednesday, 27 September 2017

R 2/15 - Suspected partiality of a deputy of the vice president

It's all about the right to be heard.

In review case R 19/12 it was decided that an objection of suspected partiality against the chairman of a board of appeal may be based on his capacity as vice president. Can such an objection of partiality also be raised if during the course of the appeal proceedings, the chairman is or was deputy of the vice president? Can you ask the members of a board it they have been a deputy of the vice president?  This case also confirms that a petition for review can concern an interlocutory decision

The petitioner claims his right to be heard has been violated numerous times. These include:

-During the oral proceedings before the board of appeal, the objected to chairman handed out a statement which said that the chairman did not wish to make comments. 

- The petitioner had asked for an interruption of the Oral Proceedings of an hour, but got only half an hour. The petitioner also requested return to written proceedings, which was denied. .

- The board rejected the objection of partiality on the basis that the scope of a deputy's responsibilities are more limited than that of a vice president. Petitioner alleges this was not communicated to the parties prior to the decision.

An earlier decision in this case also featured on this blog.  

Reasons for the Decision
1. Article 112a(1) EPC
The petitioner is adversely affected by the decision to be reviewed, since its objection of suspected partiality against the chairman of the Board in its original composition was refused. The requirement of Article 112a(1) EPC is therefore fulfilled.
2. Petition against an interlocutory decision
2.1 The petition concerns an interlocutory decision dealing with objections of suspected partiality raised against the Board’s chairman. Although this decision was not concerned with the substantive issues that were the subject of the appeal, but with a preliminary issue regarding the lawfulness of the composition of the Board, it was final in the sense of constituting res judicata for this issue, decided upon by the Board in its alternate composition.
2.2 Petitions for review of interlocutory decisions are not generally inadmissible, as already implicitly recognised in R 5/08 of 5 February 2009, which dealt with a petition for review concerning two such decisions. The Enlarged Board sees no reason to assume, in the absence of an express provision, that Article 106(2) EPC, which stipulates that a decision which does not terminate proceedings as regards one of the parties can only be appealed together with the final decision, unless the decision allows a separate appeal, is also to be applied to the petition for review procedure. Neither Article 112a EPC itself nor its implementing regulations (Rules 104 to 110 EPC) contain a provision corresponding to Article 106(2) EPC.
2.3 Moreover, Article 106(2) EPC, which concerns the ordinary legal remedy of appeal, cannot be applied analogously to the extraordinary remedy of petition for review, for the following reasons. Because the admissibility of a legal remedy is such a fundamental issue, any restrictions to it must be clearly laid down in the law. This holds all the more true for the petition for review procedure, due to the fact that it is an extraordinary means of redress and has its own specific admissibility requirements. The wording of Rule 109(1) EPC, which refers in general terms to the provisions relating to proceedings before the boards of appeal, is therefore not to be understood as encompassing a reference to the provisions governing admissibility.
2.4 It follows from the above that the Enlarged Board is unable to identify any reason to apply, to petitions for review of interlocutory decisions, the same restrictive approach to admissibility that is applied to appeals.
2.5 Accordingly, the fact that the present petition is concerned with an interlocutory decision does not render it inadmissible.
3. Article 112a(2) EPC
3.1 A petition may only be filed on the grounds stated in Article 112a(2) EPC in conjunction with Rule 104 EPC. The present petition alleges fundamental violations of the right to be heard according to Article 113(1) EPC (see section IX(1)(a) to (e) above) in connection with the ground specified in Article 112a(2)(c), and a failure on the part of the Board to deal with a request submitted by the petitioner (see section IX(1)(c) and (2) above) in connection with one of the fundamental procedural defects defined in Article 112a(2)(d) in conjunction with Rule 104 EPC.
3.2 Although it did not expand on this point at the oral proceedings, the petitioner had maintained in its written submissions that the present review proceedings were also an opportunity to look at the substance of the decision, because the Board's lawful composition was a prerequisite for any correct procedure and for compliance with the right to be heard. The Enlarged Board acknowledges that, since the interlocutory decision deals with objections of suspected partiality against a chairman, it unquestionably has consequences of the utmost importance for the proceedings as a whole. Nevertheless, as has been made abundantly clear in the established case law, review proceedings cannot serve as a means to review the merits of a decision (see e.g. R 1/08 of 15 July 2008, point 2.1 of the reasons, and R 13/12 of 14 November 2012, point 2.5 of the reasons). This principle also applies where, as in the present case, the decision to be reviewed concerns the refusal of an objection of suspected partiality. The petition for review is therefore clearly inadmissible in this respect.
4. Article 112a(4) EPC
The petition meets the formal requirements of Article 112a(4) EPC regarding the time limit, payment of the fee, and the filing of a reasoned statement.

5. Rule 106 EPC
5.1 According to Rule 106 EPC, a petition under Article 112a(2)(a) to (d) EPC is only admissible where an objection in respect of the procedural defect was raised during the appeal proceedings and dismissed by the board of appeal, except where such objection could not be raised during the appeal proceedings.
5.2 In so far as the petition is based on the alleged violations set out in section IX(1)(a), (b) and (e) above, the petitioner duly raised objections under Rule 106 EPC (see its objections 1, 2 and 3 reproduced in sections IV and V above).
5.3 As to the alleged violation set out in section IX(1)(d) above, i.e. that the petitioner was unable to comment on the facts underlying the board’s core reasoning relating to the deputy’s limited scope of responsibility, the petitioner maintained that it only became aware of this issue from the written reasons of the decision, and that its petition was also admissible because the alleged violation fell within the exception provided for in Rule 106 EPC.
5.4 Regarding the alleged violations summarised in section IX(1)(c) and (2) above, namely the absence of discussion about the admissibility of the petitioner’s correspondence with VP3 and the failure to decide on a respective procedural request, no relevant objections were raised at the oral proceedings before the board. Accordingly, to the extent that the petition relies on this ground, it is clearly inadmissible. To the extent that this specific objection forms part of the petitioner’s general objection of lack of transparency it will be dealt with in the context of the issues regarding the alleged lack of information (see point 9.5 below).
6. The board therefore concludes that the petition for review is clearly inadmissible in part.
7. Overview
As pleaded by the petitioner during the oral proceedings (see section X above), the grounds put forward in support of the present petition for review essentially fall into two groups. The first group concerns the argument that the decision was based on facts and reasons never previously discussed and therefore objectively surprising for the petitioner (see section IX(1)(d) above). The second group encompasses those grounds which revolve around the alleged general lack of transparency and factual information in the appeal proceedings leading to the contested decision, a deficiency purportedly compounded by the conduct of the chairman objected to (see section IX(1)(a) above). According to the petitioner, this conduct not only led to the second objection of suspected partiality under Article 24(3) EPC, which was raised during the oral proceedings, but also prevented it from presenting its case properly. In this difficult situation, the further procedural violations specified in section IX(1)(a), (b), (c) and (e) as well as (2) above allegedly occurred. The Enlarged Board will deal with these grounds in turn.
8. First group of grounds - the surprising nature of the decision deprived the petitioner of its right to be heard
8.1 The petitioner’s argument that it was surprised by and had no opportunity to argue against the crucial reasons of the Board’s decision took the following lines (see also section IX(1)(d) above):
- At no time before or during the oral proceedings had it ever been suggested, let alone argued, by any party or the Board that the deputy for VP3 could be regarded as not being a full deputy, but rather as someone acting within "some specifically limited scope of deputising". The petitioner had therefore assumed that the chairman objected to had deputised for VP3 in the relevant period of time and with unlimited scope. Insofar as the decision held otherwise, it was based on facts the petitioner was not aware of.
- The plain and ordinary meaning of the term “deputy” was a person performing the same duties and under the same obligations as the person he was deputising for. No other meaning could be deduced from the relevant legal provisions. A limited interpretation of the term “deputy” was not only unknown but also completely inconceivable. The petitioner made it clear at the oral proceedings before the Enlarged Board that this had resulted in a new factual background on which it had been unable to comment.
- The petitioner had exhausted all available means of obtaining further evidence establishing the facts of the case. It had thus complied with its obligations in presenting its case.
8.2 As already summarised in section III above, the petitioner had based its first partiality objection against the chairman of the Board (in its original composition) solely on the argument that the reasons of the interlocutory decision in case R 19/12 relating to the suspicion of partiality of VP3 also applied to the chairman objected to if he had acted as VP3’s deputy.
8.3 In deciding on the petitioner’s contention that there was a parallel between VP3’s situation and that of his deputy, the Board took the view that decision R 19/12 focused on the particular duties and obligations of VP3. It therefore assessed whether the chairman objected to, if he had deputised for VP3, was subject to the same obligations as VP3 by virtue of Article 10(3) EPC.
More specifically, in the passages referred to by the petitioner, in particular points 4.3.1 to 5 of the reasons (see also section VI above), the Board based its reasoning on a specific interpretation of Article 10(2) and (3) EPC. It proceeded by deduction and referred to Article 21(1) EPC, stating that the chairman of the Board, like any member of the boards of appeal, was bound only by Article 23(3) EPC, and that the mere fact that he deputised for VP3 in administrative bodies did not mean that he was under the same duty to assist the President of the EPO. This obligation to assist, laid down in Article 10(3) EPC, was incumbent upon VP3 in his capacity as permanent Vice-President. The Board concluded that, even if a chairman could deputise for VP3 in administrative bodies, it was clear from the EPC that the deputy was not a member of the administrative hierarchy of the EPO or subject to the President's authority under Article 10(2)(f) EPC; he was not under the general obligation to assist prescribed by Article 10(3) EPC.
8.4 The core of the Board’s analysis summarised above is of a legal nature, i.e. it relies on legal provisions of the EPC that are accessible to all parties to EPO proceedings, not on any particular factual knowledge about the functioning of the boards of appeal. This also holds true for the Board’s further observation that with respect to review cases the chairman objected to was not in the same position of influence as that enjoyed by VP3 as regular chairman of the Enlarged Board. Indeed, Article 22(2), third sentence, EPC specifically excludes a technically qualified chairman from chairing the Enlarged Board. The petitioner's argument that the Board’s reasoning - paraphrased in the petition by the phrase “some specifically limited scope of deputising” (see the letter dated 11 May 2015, page 10) - was based on facts unknown to the parties therefore cannot be followed.
8.5 Nor is it apparent that the petitioner had no opportunity to put forward its point of view on the functions and duties of VP3 as compared with those of his deputy, including the question of which statutory provisions applied to one and which to the other. According to the minutes of the oral proceedings, this comparison was central to the discussion during the hearing. On page 3 of the minutes it is stated (underlining by the Enlarged Board):
“Taking into account the questions to which extent the functions of the Vice-President of DG3 and a chairman of a technical board of appeal, and the proceedings before the Enlarged Board of Appeal and a technical board of appeal, were comparable, the question whether the objection under Article 24(3) EPC was justified in the light of the findings of the interlocutory decision of the Enlarged Board of Appeal of 25 April 2014 in the case R 19/12 was discussed with the parties. The appellant requested that Question 1 on page 13 of its letter of 19 September 2014 be referred to the Enlarged Board of Appeal (‘Referral question 1’).”
Question 1 on page 13 of the letter referred to in the minutes (see also section III above) reads as follows:
“Question 1: Is an objection under Art. 24(3) EPC against a member of a Board of Appeal justified for the sole reason that, during the course of the appeal proceedings, the objected-to member in addition to the judicial function holds or has held an administrative position in the European Patent Office, provided that such dual function is not required by law, in particular when the objected-to member holds or has held the position of deputy of Vice President in charge of the Boards of Appeal?”
This question had already been formulated in advance of the oral proceedings before the Board and was considered during the oral proceedings - as the minutes make clear - to be the petitioner’s reaction to the comparison of the functions of VP3 and his deputy. It shows that the petitioner was aware, or at least should have been aware, of the possibility that the Board might come to the conclusion that the functions and duties of VP3, on the one hand, and those of his deputy, on the other hand, were legally distinct and that this distinction was of relevance in the context of suspicions of partiality.
8.6 According to the petitioner, the Board never suggested that “a deputy could be regarded as not being a full deputy” and that Article 10(3) EPC applied only to Vice-Presidents, not to their deputies. In support of this argument, the petitioner contested the factual correctness of that part of the decision where the respondents’ arguments were summarised; it also questioned the reliability of the minutes in general on the grounds that they were not sent out until five months after the oral proceedings.
8.7 However, the mere fact that the minutes were issued late does not suffice to call into question the credibility of the above statement made in them. Further, there is no need to look any further into precisely what was stated in the oral proceedings by the Board and the parties and in particular whether or not the petitioner was directly confronted with the argument that - as it put it - a deputy was not a full deputy and had some specifically limited scope of deputising, and that therefore Article 10(3) EPC was not applicable to the deputy of VP3. The reason that there is no such need is that the petitioner - given that it was arguing that the findings in R 19/12 were transferable to the present case - was aware, or at least should have been, that the legal comparison of the duties and obligations of VP3 with those of his deputy was crucial for deciding on the merits of the objection raised under Article 24(3) EPC. It therefore had sufficient opportunity to argue its case.
8.8 The Enlarged Board concludes that no fundamental violation of the right to be heard can be established in respect of the first group of grounds on which the petition is based.
9. Second group of grounds - violations of the right to be heard and fundamental procedural violations which resulted in a lack of transparency and factual information in the appeal proceedings
9.1 Failure to investigate and to provide the information sought by the petitioner
9.1.1 According to the petitioner, by admitting the first objection under Article 24(3) EPC the Board in its original composition acknowledged that it was not devoid of merit. As put forward in “Referral question 2” annexed to the minutes of the oral proceedings and on page 15 of the letter dated 11 May 2015, the Board therefore had to investigate the factual background of the objection, because Article 3(1) RPBA and Article 6 ECHR obliged it to carry out an examination in order to provide evidence known by the Board.
9.1.2 This argument is not convincing. At the stage when the chairman objected to was still a member of it, the Board had to take care not to impinge on the competence of the body deciding on the merits of the objection. The Board in its alternate composition, on the other hand, was fully entitled to assess its merits.
9.1.3 Since the chairman objected to did not participate in the decision under review, his failure to comment in substance on the objection cannot as such constitute a procedural violation committed by the Board in its alternate composition. A procedural violation may reasonably be argued only with respect to the manner in which the Board reacted to this behaviour. The petitioner’s point is that the Board’s dismissal of all its attempts to get information or time to react to the objected-to chairman's failure to comment left it in the dark and thereby improperly limited its right to be heard.
9.1.4 However, as already set out above, the Board was of the opinion that it could reach a decision without any further investigations into the factual circumstances of the objected-to chairman’s deputisation for VP3. It was therefore not obliged to try to clarify an issue which, according to its own legal assessment (the correctness of which is not a matter to be evaluated in review proceedings, see point 3.2 above), was not relevant for the outcome of the proceedings. Furthermore, according to the established case law of the Enlarged Board, a violation of the right to be heard can only be considered as fundamental for the purposes of Article 112a(2)(c) EPC if a causal link exists between the procedural defect and the final decision (see R 1/08, point 3 of the reasons; R 11/09 of 22 November 2010, point 8 of the reasons; R 19/09 of 24 March 2010, point 9.2 of the reasons). There is no such causal link in the present case, since the decision expressly states that the circumstances which, according to the petitioner, should have been investigated had no bearing on the outcome of the appeal proceedings.
9.2 Time allocated to petitioner during oral proceedings
9.2.1 The petitioner alleges that it was not allocated enough time during the oral proceedings to react to the objected-to chairman's refusal to comment. It had requested that the oral proceedings be interrupted for at least one hour, but the Board only interrupted them for 30 minutes. The petitioner raised an objection (“Objection 1”, see section IV above), which was dismissed.
9.2.2 The Enlarged Board notes that the proceedings before the Board (in its alternate composition) took place on two days, i.e. between 10:40 hrs and 18:00 hrs on the first day and between 9:20 hrs and 14:00 hrs on the second day. On both days, the petitioner was given ample opportunity to present its case, including arguments, objections and questions for referral. In particular, it raised a second objection of suspicion of partiality based on the refusal to comment. It has not been argued - and is not apparent from the minutes - that the Board dismissed any of these arguments or objections as belated for not having been submitted immediately after the above-mentioned interruption. Therefore, the Enlarged Board fails to see how the difference in the length of the interruption (30 minutes instead of 1 hour) at this early stage of the proceedings could have affected in any way the decision which was finally taken.
9.2.3 Accordingly, the alleged deficiency cannot amount to a fundamental violation of the petitioner’s right to be heard.
9.3 Refusal to return to written proceedings
9.3.1 The petitioner furthermore maintained that the Board committed a fundamental violation of its right to be heard by refusing to return to written proceedings, since at the oral proceedings the petitioner could not adequately deal with the objected-to chairman’s failure to comment. The petitioner’s position is that a return to written proceedings would have enabled it to submit further relevant case law, in particular decisions of the ECtHR and of national courts supporting its contention that the chairman objected to had a duty to comment in substance and its further argument that its second objection of suspected partiality, based on the refusal to comment, was well-founded.
The petitioner argued during the oral proceedings before the Enlarged Board that the Board had made the wrong decision because - had it been aware of the relevant European and national case law - it would have recognised that it and the objected-to chairman were under an obligation to dispel any doubts. Its decision, according to the petitioner, ignored the ECtHR’s case law on Article 6 ECHR as well as the relevant national case law. There was thus a causal link between the refusal to return to written proceedings and the outcome of the appeal proceedings.
9.3.2 The issue which the Enlarged Board must decide on is not whether the Board made a wrong decision. That would imply an assessment of the merits of the decision and would therefore fall outside the scope of the petition for review procedure (see point 3.2 above). Rather, the crucial issue is whether, prior to the Board’s decision, the petitioner had sufficient opportunity to put forward all its relevant arguments.
9.3.3 The time allocated to the petitioner by the Board to react to the objected-to chairman’s refusal to comment is to be assessed in the context of the case as a whole.
The oral proceedings before the Board in its alternate composition, devoted to a preliminary procedural point, namely the objection under Article 24(3) EPC, and not to the substance of the appeal case, took place on two consecutive days and lasted, with interruptions, more than a full day. As already noted above (point 9.2.2), on both days the petitioner was given ample opportunity to present its case, including arguments, objections and questions for referral.
9.3.4 According to Article 15(6) RPBA, a board of appeal shall ensure that a case is ready for decision at the conclusion of the oral proceedings, unless there are special reasons to the contrary. Thus, whilst it is not out of the question for a board to return to written proceedings, this power has to be exercised with caution and in exceptional circumstances. So the issue is whether the circumstances of the present case were so exceptional that the Board was obliged to return to written proceedings and, by not doing so, fundamentally violated the petitioner’s right to be heard.
As is apparent from the written reasons of the decision (see section VI above), the Board took the view that Article 3(2) RPBA safeguarded the objected-to member’s right to be heard on the objection, by giving him an opportunity to present his comments, but did not impose any general obligation to provide a full response to the objection made. The Board accepted that there might be cases where a board would not be in a position to decide on the objection without obtaining the necessary information from the member objected to, but took the view that this was not such a case. Therefore, no partiality could be inferred from the objected-to chairman’s failure to comment in substance on the objection.
9.3.5 As already stated on a number of occasions above (see points 3.2 and 9.3.2), it is not within the Enlarged Board’s competence in the framework of the present review to decide whether the Board’s view was correct. The only question is whether the Board, to respect the petitioner's right to be heard, should have used its exceptional power to return to written proceedings to give it an opportunity to research the case law, in particular decisions of the ECtHR and national courts, for rulings that might have contradicted the Board’s view and persuaded it to change its mind.
One of the Board’s considerations in deciding not to accede to the petitioner’s request for a return to written proceedings was the content of a letter to VP3, a copy of which had been submitted by the petitioner with its letter of 19 September 2014. In that letter the petitioner noted that, so far, no statement had been made by the member objected to and it cited an English Court of Appeal decision according to which a judge faced with an objection that he should recuse himself on the ground of apparent bias had a duty to disclose relevant information (see annex Pet 11 to the present petition). The Board concluded from the letter that the petitioner, prior to the oral proceedings, had in fact given consideration to the possibility that no detailed answer would be given by the member objected to. The petitioner complained that a letter addressed to VP3 was being used against it, whereas further items of correspondence with VP3 had not been admitted (see point 10 below).
However, there are no grounds for objection if a board, when assessing a request for a return to written proceedings, takes into account the party’s previous behaviour as documented in a submission made prior to the oral proceedings. Nor is it inconsistent with this approach not to admit further correspondence submitted only at the oral proceedings.
9.3.6 For these reasons, it cannot be concluded that, in the procedural circumstances of the case at issue, the Board was obliged to accede to the petitioner’s request for a return to written proceedings to give it an opportunity to research further case law. In this respect, no fundamental violation of the petitioner’s right to be heard has occurred.
9.4 In view of the above, the Enlarged Board concludes that when the Board decided that the lack of detailed information from the chairman objected to did not give rise to the appearance of suspected partiality as alleged, it made a decision on an established fact: the chairman's silence, which it evaluated in the context of the case as a whole, including R 19/12 - which also refers to Article 6 ECHR and ECtHR case law. Having heard the petitioner’s arguments, it did not find it necessary, in order to evaluate the facts it had to decide on, to delay the proceedings and wait for possible guidance from national and European case law that might be submitted by the petitioner. Further, the Enlarged Board concludes that (i) the petitioner had time to express its doubts about whether the chairman objected to had the right to remain silent and about the consequences of this silence, (ii) there was no exceptional circumstance requiring a return to the written proceedings, and (iii) the contention that the silence of the chairman objected to might have been interpreted differently if the Board had been in possession of the national and European case law referred to by the petitioner remains speculative, given all the circumstances taken into consideration by the board in this particular case.
9.5 Non-admission of further correspondence with VP3
9.5.1 In addition to the copy of the enquiry letter already filed with the letter of 19 September 2014, the petitioner submitted two further items of correspondence with VP3 in the course of the oral proceedings, namely a copy of VP3's response to this letter and a copy of a further enquiry letter sent to VP3 on the first day of the oral proceedings (see sections IV and V above and the petition of 3 March 2015, page 8). The Board handed both documents back to the petitioner. The petitioner alleges that this amounted to a failure to decide on its requests that these documents be admitted (Article 112a(2)(d) EPC in conjunction with Rule 104(b) EPC), and that the absence of any discussion of these requests constituted a fundamental violation of its right to be heard (see section IX(1)(c) and (2) above).
9.5.2 Nothing in the minutes contradicts the petitioner’s allegation that the admissibility of the documents was not discussed. The Enlarged Board therefore assumes, at least for the sake of argument, that the parties were not heard on this issue.
9.5.3 However, even leaving aside the fact that the petitioner did not raise any specific objection under Rule 106 EPC in respect of the admission of the correspondence, the Enlarged Board notes that this correspondence was filed in order to (i) demonstrate the lack of information, (ii) justify the petitioner's expectation that the chairman objected to would make a statement disclosing the missing information, and (iii) demonstrate its surprise at the chairman's refusal to comment. Therefore, the reasons set out above regarding the lack of information and the decision coming as a surprise apply here as well, and the Enlarged Board fails to see that any possible causal link has been established between the fact that the Board refused to admit the correspondence, without making any formal decision, and the outcome of the proceedings.
9.6 The Enlarged Board concludes that no fundamental violation of the right to be heard can be established in respect of the second group of grounds on which the petition is based.
10. Conclusion
For the above reasons, the petition is clearly unallowable. It also follows that the fee for the petition cannot be reimbursed.
For these reasons it is decided that:
The petition for review is unanimously rejected as clearly unallowable.
This decision R 0002/15 (pdf) has European Case Law Identifier: ECLI:EP:BA:2016:R000215.20161121. The file wrapper can be found here. Photo by GDJ via PixaBay under a CC0 license (no changes made).

1 comment :

  1. R 19/12 has made enough problems and eventually led to the present reform of the Boards and their exile to the outskirts of Munich.

    It is thus understandable that the EBA wanted to put a halt to further exploitation of R 19/12 to a deputy of VP3.

    I would rather think that reason for the present petition was to get ammunition for the procedure before the German Constitutional Court (GCC). The representative in the present case is also acting before the GCC. In point 3.2 the EBA made clear that the revision procedure is not an opportunity to discuss the merits of the case, which is one of the main queries in front of the GCC.

    The issue there is the absence of revision as to the substance when an application is refused or a patent revoked, which was the case in decision T 1938/09.

    It will be interesting