Friday, September 28, 2018 T 1627/09 - self-recuse of Board of appeal after successful petition for review

Two board members recuse themselves

After the successful petition for review in R 2/14 of 22 April 2016, the case was remitted to the Board of Appeal that had originally decided not to set aside the opposition division's decision to revoke the patent. Upon remittal, the entire board that took that appeal-decision requested to be recused from the case  to avoid a potential perception of bias when they had to decide for a second time on the same issues (actually one member had already retired).  

Interestingly, an issue with Art. 24 also played during the petition for review when the Enlarged board had to decide if the Chairman of the Enlarged Board of Appeal could be allowed to perform both judicial tasks and executive tasks in his capacity as Vice-President Appeals. 

Summary of Facts and Submissions

I. This interlocutory decision concerns the procedure under Article 24(4) in connection with Article 24(2) EPC initiated by the notices of self-recusation of the chair and the legal member of the Board of Appeal 3.3.08.

II. By decision T 1627/09 of 10 October 2013, the Board of Appeal 3.3.08 in the composition B. Stolz (chair), T. Mennessier (technical member) and D. Rogers (legal member) dismissed the appeal of the patent proprietor (appellant) against a decision of an opposition division of the European Patent Office revoking patent No. 1 147 174.

III. Upon the appellant's petition for review pursuant to Article 112a EPC, the Enlarged Board of Appeal set aside decision T 1627/09 and ordered the proceedings before the Board 3.3.08 to be re-opened (decision R 2/14 of 22 April 2016).

IV. Since the technical member of the board who participated in the decision T 1627/09 of 10 October 2013 had meanwhile retired, he was replaced according to the business distribution scheme of the Technical Boards of Appeal.

V. Both the chair and the legal member of the board gave notices of self-recusation according to Article 24(2) EPC. Therein, they held that, if they remained as members of the board, they would have to decide for a second time on the same issues. In order to avoid a potential perception of bias, they requested to step out of the board and to be replaced by their alternates.

VI. The appellant submitted comments in favour of a change in the board's composition.

VII. The respondent made no comments.

Reasons for the Decision

1. Members of a board of appeal may not take part in a case in which they have any personal interest, or if they have previously been involved as representatives of one of the parties, or if they participated in the decision under appeal (Article 24(1) EPC). If, for one of these reasons, or for any other reason, a member of a Board of Appeal considers that he/she should not take part in an appeal, he/she shall inform the Board accordingly (Article 24(2) EPC).

2. In view of the notices of self-recusation of the chair and the legal member who formed part of the board in decision T 1627/09 of 10 October 2013, the present board, in which the members concerned have been replaced by their alternates, has to decide on the action to be taken (Article 24(4) EPC).

3. According to the jurisprudence of the Boards of Appeal, notices of self-recusation by board members do not automatically effectuate their exclusion from the proceedings, but only initiate the procedure under Article 24(4) EPC, without pre-empting the outcome of the decision to be taken. In a decision on the members' replacement, the grounds given in the notices of self-recusation, which may by their nature constitute possible grounds for an objection of partiality, should normally be respected, as only a very strict observance of the requirement of impartiality can be considered in line with the Boards' judicial function as last instance within the European patent system. There should be no remaining real possibility of a party or the public suspecting bias after a decision by a board (cf. decisions G 1/05, OJ EPO 2007, 362, points 2 and 7; J 15/04 of 30 May 2006, points 12 and 13; T 584/09 of 1 March 2013, point 7; and R 2/15 of 21 October 2015, points 3 and 4).

4. The Boards' jurisprudence in this respect is in accordance with Article 6(1) of the European Convention on Human Rights (ECHR) and Article 47(2) of the Charter of Fundamental Righs of the European Union (CFR), both recognised as binding standards for proceedings before the boards, as they are expressing principles of procedural law generally recognised in the Contracting States of the European Patent Organisation (EPO) (see Article 125 EPC and decisions D 11/91, OJ EPO 1995, 721, point 3.3; G 1/05, supra; G 2/08, OJ EPO 2010, 456, point 3; R 19/12 of 25 April 2014, points 8 to 10; R 8/13 of 20 March 2015, point 2; R 2/14, supra, point 5). For that reason, the case law of national courts in the EPO Contracting States, as well as the case law of the European Court of Human Rights, may serve as supplementary sources of interpretation of the EPC (cf., inter alia, R 19/12, supra, point 9).

5. According to the case law of the European Court of Human Rights on Article 6(1) ECHR, only under very exceptional circumstances a notice of self-recusation shall not lead to a replacement (cf., inter alia, European Court of Human Rights, Rudnichenko v. Ukraine, no. 2775/07, paragraph 113 to 119; along the same lines cf., as an example for national case law in the EPO Contracting States, Austrian Supreme Court 4 Ob 186/11y EFSlg 131.987).

6. For a notice of self-recusation under Article 24(2) EPC to be accepted, it is therefore not necessary - as is the case for objections raised under Article 24(3) EPC, first sentence - to establish an actual partiality. It is sufficient that an appearance of partiality is at least arguable in the circumstances of the case (see G 1/05, supra, point 19; R 2/15, supra, point 5 with reference to European Court of Human Rights, Micallef v. Malta, no. 17056/06, paragraph 98).

7. In the present case, no particular concerns as to the impartiality of the board members have arisen or had been voiced by the parties before. At the same time, it is at least arguable that an independent observer might objectively conclude that such bias could exist (e.g. see decision T 584/09, supra, where - as in the present case - appeal proceedings had been re-opened upon a petition for review and board members were then replaced upon self-recusation, with the board there arguing that such replacement had been justified to avoid any perception of bias on the members' side).

8. As there are no exceptional circumstances that could lead to a different conclusion, the notices of self-recusation are to be accepted.

Order

For these reasons it is decided that:

The chair and the legal member of board 3.3.08 are to be replaced by their alternates.

This decision has European Case Law Identifier: ECLI:EP:BA:2018:T162709.20180914. The whole decision can be found here (pdf). The file wrapper can be obtained here.  Photo by Dimitri Houtteman (Dimhou) obtained via Pixabay under CC0 license (no changes made).