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.  

Saturday, May 16, 2015 R 8/13 - Call for a Diplomatic Conference

Prior to the oral proceedings in petition for review proceedings before the Enlarged Board in its five-member composition, the petitioners, by letter dated 2 June 2014, filed further submissions in support of their petition and, on pages 12 and 13 of those submissions, stated with reference to R 19/12 that: "In any event as an auxiliary measure and in order to safeguard the rights of the petitioners-patentees and not to be precluded in other proceedings, we herewith object to the chairman of the current composition of the Enlarged Board of Appeal in this case for suspicion of partiality in line with the reasoning of R 19/12".

The reader may find the below worthwhile in view of the EPO's Online consultation: Boards of Appeal (click here), where the The European Patent Office invites of users of the European patent system concerning to suggest and comment on possible improvements of the functioning of the Boards of Appeal with respect to both their autonomy and the perception of their independence and their efficiency. The user consultation will run until 30 June 2015.
The consultation is done in the context of a structural reform of its Boards of Appeal that has been launched by the European Patent Organisation. The main features of the proposed reform are described in the document (CA/16/15 (pdf)), which has been presented by the European Patent Office to the Administrative Council in March and has met with broad support. The aim of the reform is to ensure and increase the organisational and managerial autonomy of the Boards of Appeal, the perception of their independence as enshrined in Article 23 EPC, as well as their efficiency within the legal framework of the current European Patent Convention. 
See also the EPO News message of 30 April 2015.

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).