Friday, March 02, 2018 R 3/16 - Do not frighten the Board of Appeal

This is a petition for review against a decision of a Board of Appeal rejecting the opposition of an opponent in an opposition case. During opposition the opponent requested replacement of the members of the division based on a suspicion of partiality. This request was rejected by the opposition division. 

The opponent then filed an appeal together with (late) new documents in which he made many new harsh requests. According to some of those requests  (a) the Board should have remitted the case to the opposition division without oral proceeding and before a different composition of the division, (b) the Board should have excluded a rapporteur of the Board from the proceedings because of his alleged incompetence (c) the Board should have been enlarged by a legally qualified member acquainted with the right to be heard issue ...(g) oral proceedings should have been held public such that members of the public could have witnessed the correctness of handling of the proceedings by the Board.

The Board considered request (a) inadmissible. The opponent/appellant insisted on request (a) and indicated that if request (a) was not fulfilled, a petition for review on the ground of procedural violation would have been risen. The appellant even filed to the Board a document describing the skills required by a technically qualified member of the Board of Appeal to show to the Board that the rapporteur objected did not qualified for the function, that the conduct of the Board was a disgrace and went on with this line of mistrust reasoning.

A petition for review was finally filed on the grounds of several procedural violations of the opposition division and Board of Appeal.

As one may expect the Enlarged Board found the conduct of the petitioner quite disrespectful and discarded the petition as clearly unallowable.   

Wednesday, September 27, 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.  

Monday, July 27, 2015 T 1938/09 Procedural triggery?

Well before the oral proceedings, the proprietor/appellant requests the oral proceedings to be recorded and made public, The appellant next raises a partiality issue against the board (based on being a possible substitute for VP3). Subsequently, the appellant requested a stay of proceedings and questions to be referred to the Enlarged Board. 

None of the issues were successful.

Friday, May 01, 2015 R 8/13 Partiality settled for the time being

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).

As a consequence, the EPO took internal measures to reduce the consequences of the double function, but did not officially publish the measures.

In R 2/14 suspected partiality of the chairman was raised again. The Enlarged Board had to decide whether the measures taken removed the grounds. It decided that that was the case. It reasoned:

r.39.6 Consequently, the Board considers that it is appropriate to apply the legal concept of "normative concordance" so that a balance between the conflicting legal / institutional provisions of Article 10(3) EPC (in respect of management functions) and Article 23(3) EPC (in respect of judicial functions) can be achieved with regard to the Chairman's dual duties as VP3 and Chairman of the Enlarged Board of Appeal.
r.39.7 In applying the concept of "normative concordance" to the present case, the Board concludes that the President's power to give instructions to the Chairman in his function as VP3 pursuant to Article 10(2)(f) and (3) EPC is limited by virtue of Article 23(3) EPC.

The Chairman is accordingly relieved of any obligation
(a) to obey any presidential instructions or
(b) to observe other administrative/executive directions or
(c) to assist the President pursuant to Article 10(3) EPC

if and to the extent that any such instruction, direction or assistance might affect him and/or any other member of the boards of appeal, including the Enlarged Board of Appeal, directly or indirectly, in performing their judicial duties (see also Braendli, Münchner Gemeinschaftskommentar EPÜ, supra, Art. 10, para. 53, and Art. 11, para. 37).

In R. 8/13 this issue is raised for the third time. The focus now shifts to whether the current way of working complies with international law.

The Enlarged Board decides that that is the case. This decision seems for the time being to end the discussion on partiality of the Chairman of the Enlarged Board in view of the double function of also being a Vice President (of DG3). 

The Enlarged Board reiterates that it would be best to remove the organisational conflicts but that that is in issue for the legislator. 

Friday, March 13, 2015 R 2/14 - Normative concordance solving a normative conflict?

 
Catchwords:

1. The simultaneous entrustment of the Chairman of the Enlarged Board of Appeal with judicial tasks in his capacity as judge appointed in accordance with Article 11(3) EPC and with executive tasks in his capacity as Vice-President Appeals appointed pursuant to Article 11(2) EPC causes an inherent "normative conflict" between the institutional provisions of Article 10(2)(f)and (3) EPC and Article 23(3) EPC, which cannot be completely resolved without changes to the current institutional structure of the European Patent Organisation. However, in the meantime, its impact can and must be mitigated by a continuous balancing of these potentially conflicting duties ("normative concordance") (points 36 to 40).

2. The factual scope of an objection pursuant to Article 24(3) EPC is defined in the statement of grounds of objection initiating the interlocutory proceedings under Article 24(4) EPC. Apart from a subsequent elaboration of said objection by supporting facts, evidence and arguments, the subject-matter of the proceedings, in principle, cannot be extended or changed, whether by new facts or by a new objection (points 56.3 to 56.6).

Summary of Facts and Submissions

I. The patent proprietor (hereinafter: the petitioner) filed a petition for review against decision ... of Technical Board of Appeal ... (hereinafter: the Technical Board of Appeal) dated ... dismissing its appeal against the decision of the opposition division dated ... revoking European patent No. ... . The petitioner based its petition for review on a fundamental violation by the Technical Board of Appeal of its right to be heard (Articles 112a(2)(c) and 113 EPC). In essence, the petition contained the assertion that, when taking the decision under review, the Technical Board of Appeal either had disregarded essential facts or arguments submitted by the petitioner or had based its decision on facts or arguments unknown to the petitioner.

II. The present proceedings relate to the petitioner's objections to all the members of the Enlarged Board of Appeal in its original composition pursuant to Rule 109(2)(a) EPC, consisting of Mr ... as the first and Mr ... second legally qualified members (the second legally qualified member being the chairman) and Mr ... the technically qualified member (hereinafter: the Enlarged Board). The petitioner raised and reasoned these objections in its letter of 8 July 2014 (hereinafter: the statement of grounds of objection).

Tuesday, March 03, 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).